01981891
04-10-2000
Atanacio Sambrano, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Atanacio Sambrano v. Department of the Air Force
01981891
April 10, 2000
Atanacio Sambrano, )
Complainant, )
) Appeal No. 01981891
v. ) Agency No. YHML95009
)
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
____________________________________)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
basis of age (50) in violation of the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and on the
bases of race (Asian/Pacific Islander), color (brown), national origin
(Philippines), reprisal (prior EEO complaint), and harassment (non-sexual)
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> Complainant alleges he was discriminated
against on January 1, 1995, when his performance appraisal for the
1994-1995 rating period was written and signed by a Non-Commissioned
Officer (NCO). The appeal is accepted pursuant to 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. � 1614.405). For the following
reasons, the Commission AFFIRMS the agency's decision.
The record reveals that during the relevant time, complainant was employed
as a Civil Engineer at the agency's Yokota Air Base in Japan. In his
response letter,<2> complainant wrote that he had worked under various
supervisors, and that he had never, in twenty-four years, been given
the rating that he received from the NCO. During his federal career,
he asserted that his appraisals had been written by military officers
or civilian employees, and that he had never worked under an NCO.
Complainant claimed that his treatment was degrading and insulting,
and that he had never been informed that the NCO was his supervisor.
He wrote that he was the only Engineer in the office, and that the NCO
could not have supervised him because he was not an Engineer.
The record also indicates that while working under a different
supervisor, complainant received a "letter of reprimand" and a rating
of "Unacceptable" for the 1993-1994 period. The record reflects that
complainant subsequently filed an EEO complaint as a result of those
actions.
The NCO, Chief of Maintenance Engineering, stated that complainant
was his subordinate during the rating period. He further stated that
complainant's performance was adequate and that complainant was rated
"Fully Successful" for that period. He noted that complainant's
previous supervisor had rated him less than satisfactory for the
previous rating period. The NCO further noted that he was not aware
of complainant's previous unsatisfactory rating and accompanying EEO
complaint until complainant briefed him on it. The NCO recalled that
complainant expressed no objection to being supervised by him. In fact,
he testified that complainant's time cards were signed by him, and that
he also gave complainant daily work assignments and granted him leave.
While noting that he was aware of complainant's age and race, the NCO
declared that he and complainant got along well, and that complainant
was never harassed. He further declared that complainant seemed happy
to have received a fully successful rating, and that complainant never
asked him for a higher rating.
The Commander (complainant's second-line supervisor) stated that he
had known complainant for less than a year. He further stated that he
had received briefings on complainant's poor performance, appraisal and
letter of reprimand. The Commander testified that complainant reported
to the NCO when he became the Chief of Maintenance Engineering in 1994.
He further testified that he was not aware of any harassment or prior EEO
activity involving complainant. The Commander declared that complainant's
color, race and age had no bearing on his decisions.
Believing he was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint in June 1995.
The agency dismissed the claim here now on appeal, along with two others.
However, while affirming the agency's dismissal of the two other claims,
on January 3, 1997, the Office of Federal Operations (OFO) remanded the
present claim to the agency for further investigation. 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. When complainant failed to respond within
the time period specified in 29 C.F.R. � 1614, the agency issued a final
decision on December 1, 1997.
In its FAD, the agency concluded that complainant failed to participate in
the investigation of his claims, and that whether complainant established
a prima facie case on any of his alleged bases was no longer relevant.
The agency further concluded that its officials articulated legitimate,
nondiscriminatory reasons for its actions, namely, that the NCO stated
that he was complainant's supervisor during the rating period in question,
and that in addition to making daily work assignments, he also signed
complainant's time card and approved his requests for leave. The agency
asserted that complainant did not voice any objections at the time to
these ordinary exercises of supervisory judgment and control. Further,
the agency asserted that its Commander testified that complainant
worked under the supervision of the NCO when he became the head of
the maintenance engineering function. Finally, the FAD found that
complainant did not establish that more likely than not, the agency's
articulated reasons were a pretext to mask unlawful discrimination.
ANALYSIS
As an initial matter, complainant contends that after having received
the investigative file containing notification of his right to a hearing
or an immediate FAD, he immediately noticed that he had never received
an investigative affidavit to complete as part of the investigation.
However, the Commission finds that while complainant purportedly did not
get an opportunity to submit an affidavit as part of the investigative
process, complainant should have requested a hearing before an
Administrative Judge as a means of supplementing and correcting
the record. Moreover, on appeal, complainant has not proffered any
additional evidence in support of his claim.
In United States Postal Service Board of Governors v. Aikens, 460
U.S. 711, 713-14(1983), the Supreme Court held that, once a legitimate,
nondiscriminatory reason for the actions has been established, the
fact-finder could dispense with the prima facie inquiry and proceed to the
ultimate stage of the analysis, i.e., whether the complainant has proven
by preponderant evidence that the articulated reasons were a pretext
for discrimination. The agency's NCO stated that he was complainant's
supervisor during the rating period in question, and that in addition to
making daily work assignments, he also signed complainant's time card and
approved his requests for leave. The agency asserted that complainant
did not voice any objections at the time to these ordinary exercises of
supervisory judgment and control. Furthermore, the agency asserted that
its Commander testified that complainant worked under the supervision of
the NCO when he became the head of the maintenance engineering function.
The Commission finds that the agency has articulated a legitimate,
nondiscriminatory reason explaining its actions. Also, the Commission
finds that complainant has failed to meet his burden of establishing,
by a preponderance of the evidence, that the agency's reasons for its
actions were a pretext masking discrimination. There is no credible
evidence to demonstrate that the agency's actions in this situation were
rooted in discriminatory or retaliatory animus under any of complainant's
alleged bases.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the agency's decision.
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
April 10, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1On 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.
2April 11, 1997 response to agency's March 20th request for additional
information concerning complainant's claims. The record indicates
that the assigned investigator was unable to obtain an affidavit from
complainant as part of the investigative record. In his Report of
Investigation, the investigator stated that he mailed a blank affidavit
with instructions to complainant's address of record, but that he never
received a response. Therefore, complainant's contentions are based
upon the evidence contained in the record.