01996687
12-22-2000
Arnold L. Trindade, Complainant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, (Federal Drug Administration), Agency.
Arnold L. Trindade v. Department of Health and Human Services
01996687
December 22, 2000
.
Arnold L. Trindade,
Complainant,
v.
Donna E. Shalala,
Secretary,
Department of Health and Human Services,
(Federal Drug Administration),
Agency.
Appeal No. 01996687
Agency No. FDA-014-95
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.<1> Complainant
alleged that he was discriminated against on the bases of race (Asian
Pacific Indian) and age (DOB: 10/31/33) when: (1) he received a rating
of Excellent rather than Outstanding on Element II of his Fiscal Year
1995 performance appraisal; (2) management used a "Special Report" which
contained deliberately false documentation about his work in an attempt
to show that his productivity was low; and (3) his perfect score on the
National Check Sample for Quality Assurance was not recognized in his
Fiscal Year 1995 performance appraisal.
The record reveals that during the relevant time, complainant was employed
as a GS-11 Microbiologist, at the agency's Northeast Region facility in
Brooklyn, New York. Believing the agency discriminated against him as
referenced above, complainant sought EEO counseling and subsequently
filed a formal complaint on December 11, 1995. At the conclusion of
the investigation, complainant was informed of his right to request a
hearing before an EEOC Administrative Judge or alternatively, to receive
a final decision by the agency. Complainant requested that the agency
issue a final decision.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253-256 (1981); and Loeb v. Textron, 600 F.2d 1003
(1st Cir. 1979), the Commission finds that even assuming complainant
established prima facie cases of race and age discrimination, he failed
to establish that the agency's legitimate, nondiscriminatory reason
for the Excellent rating was a pretext for race discrimination or
that "but for" his age, he would have received an Outstanding rating.
In reaching this conclusion, the agency stated that in order to achieve
an Outstanding rating in Element II, an employee had to make him or
herself available for extra duties and put in extra time. Review of the
Element II ratings in the performance appraisals of those employees who
received an Outstanding rating reflects that these employees volunteered
for and undertook additional work. There is no evidence in the record
that complainant did the same.
We further find that complainant failed to establish that the "Special
Report" prepared on his behalf after he received his performance
appraisal contained deliberately false documentation or inaccuracies
or was produced in an attempt to show that his productivity was low.
The evidence indicates that the "Special Report" did not represent
time spent on completed operations which is why it was inconsistent
with complainant's personal log. Moreover, complainant's Element
II rating indicated that he maintained a high level of productivity.
However, a high level of productivity alone was insufficient to merit an
Outstanding rating in Element II; an employee had to make him or herself
available for extra duties and put in extra time. Finally, management
stated that complainant's perfect score on the National Check Sample for
Quality Assurance occurred in 1993 and therefore did not have bearing
on his Fiscal Year 1995 performance appraisal. However, complainant did
receive credit for a Check Sample Analysis assignment which was reviewed
under Element I for which he received an Outstanding rating.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the agency's
final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the office of federal operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to
file a civil action. Both the request and the civil action must be
filed within the time limits as stated in the paragraph above ("Right
to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 22, 2000
__________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.