Atanacio Sambrano, Complainant,v.F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionApr 10, 2000
01981891 (E.E.O.C. Apr. 10, 2000)

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.