Arthur L. Teague, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionJul 5, 2000
01a03090 (E.E.O.C. Jul. 5, 2000)

01a03090

07-05-2000

Arthur L. Teague, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Arthur L. Teague v. Department of the Army

01A03090

July 5, 2000

Arthur L. Teague, )

Complainant, )

) Appeal No. 01A03090

v. ) Agency No. BOAHF0981010190

) Hearing No. 130-99-8177-X

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

)

DECISION

The complainant timely initiated an appeal to the Equal Employment

Opportunity Commission (Commission) from the final decision of the agency

concerning his allegation that the agency violated Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> The appeal

is accepted by the Commission in accordance with 64 Fed. Reg. 37,644,

37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).

ISSUE PRESENTED

The issue presented herein is whether the complainant has established

that the agency discriminated against him based on race (Black) when

he received a rating of �Successful Level 2" on his 1997-98 performance

appraisal.

BACKGROUND

During the period in question, the complainant was employed as a Heavy

Mobile Equipment Repairer at the Anniston Army Depot in Alabama. The

complainant filed a formal complaint in October 1998 in which he raised

the issue identified above. Following an investigation, the complainant

requested a hearing and his case was assigned to administrative judge

(AJ). In May 1999, the AJ, after receiving a motion from the agency,

issued a Notice of Intent to Issue Findings and Conclusions Without

a Hearing. Although the complainant was afforded an opportunity to

respond, he did not submit an objection, and the AJ issued a decision

on February 8, 2000, finding no discrimination. In a final order dated

February 16, 2000, the agency informed the complainant that it intended

to fully implement the AJ's decision. It is from the agency's order

that the complainant now appeals.

ANALYSIS AND FINDINGS

After a review of the record in its entirety, it is the decision of

the Equal Employment Opportunity Commission to affirm the agency's

final order because the AJ's issuance of a decision without a hearing

was appropriate and a preponderance of the record evidence does not

establish that discrimination occurred. In particular, the Commission

agrees with the AJ's conclusion that the agency articulated a legitimate,

nondiscriminatory reason for the complainant's rating, i.e., his poor

time utilization. The Commission also agrees that the complainant

has offered nothing which suggests that this reason is pretextual.

Accordingly, the Commission finds the complainant has not established

that he was discriminated against based on his race.

CONCLUSION

It is the decision of the Commission to AFFIRM the agency's final order

and find the complainant has not established that he was discriminated

against as alleged.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

07-05-00

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

01 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 64 Fed. Reg. 37,644 (1999), where applicable,

in deciding the present appeal. The regulations, as amended, may also

be found at the Commission's website at www.eeoc.gov.