01985878
01-19-2000
Edward O. Adams, Complainant, v. Daniel S. Goldin, Administrator, National Aeronautics and Space Administration, Agency.
Edward O. Adams, )
Complainant, )
) Appeal No. 01985878
v. ) Agency No . NCN-95-MSFC-A027
)
Daniel S. Goldin, )
Administrator, )
National Aeronautics and Space )
Administration, )
Agency. )
)
DECISION
The complainant timely initiated an appeal to the Equal Employment
Opportunity Commission (Commission) from the final decision of the agency
concerning his claim that the agency violated Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq., and the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C. � 621
et seq.<0> The appeal is accepted by the Commission in accordance with
the provisions of EEOC Order No. 960.001.
ISSUES PRESENTED
The issues presented herein are whether the agency discriminated against
the complainant based on race (Hispanic), national origin (Mexican),
age (over 40), and reprisal (prior EEO activity) when: (1) he was rated
�Fully Successful� on his 1994 performance appraisal by an official not
in his supervisory chain;<0> (2) he was issued a memorandum on April 11,
1995, requiring that he schedule his lunch hours between 11:00 a.m. and
1:00 p.m.; and (3) he was issued a memo on April 6, 1995, requesting
that he provide an explanation for leaving a meeting early on that date.
BACKGROUND
The complainant filed formal complaints in March and June 1995 in which he
raised what have been identified as Issues 1 through 3. These complaints
were subsequently consolidated and, following an investigation,
the complainant requested a hearing before an administrative judge.
The record reveals that the complainant withdrew that request on the
day of the scheduled hearing and, instead, requested that the agency
issue a final agency decision. The agency thereafter issued a final
decision (FAD) dated June 2, 1998, finding no discrimination with regard
to all three issues. It is from this decision that the complainant
now appeals.
Issue 1
During the period in question, the complainant was employed as an
Aerospace Technician/Technical Management at the Marshall Space Flight
Center in Alabama. The first issue raised by the complainant regards
the rating of �Fully Successful� he received on his 1994 performance
appraisal. The complainant states that he should have received a
rating of �Outstanding� because he was told by the chief of his branch
(Responsible Official 1, RO 1) that he was doing �an excellent job.� The
complainant also objects to the fact that the individual (Responsible
Official 2, RO 2) who preceded RO 1 is the one who rated him.
According to both RO 1 and RO 2, RO 2 was not the rating official,
but merely reviewed the rating given to the complainant by RO 1.
In support of the complainant's �Fully Successful� rating, RO 1 cited
several deficiencies, including the complainant's limited knowledge of
the Huntsville Operations Support Center (HOSC) systems, his inability
to interface effectively with the Advance X-Ray Astronomy Facility and
Shuttle projects, and his inability to �work simple assignments.� RO
1 stated further, �[The complainant's] ability to perform day-to-day
assignments such as attending routine meetings, writing minutes, and
printing HOSC Problem Reports from a computerized data base would in no
way constitute an Outstanding performance rating. This kind of work is
not even Highly Successful.�
Issue 2
The genesis of this issue involves the complainant's practice, under a
supervisor who preceded RO 1, of taking his lunch hour at the end of the
work day so that he could pick up his daughter at school. According to RO
1, when he became the complainant's supervisor he was concerned about the
practice and consulted a personnel staff member regarding its propriety.
RO 1 stated that this individual told him that regulations provide that
lunch should be taken in accordance with an employee's flexi-tour hours
which, in the complainant's case, would be between 11:00 a.m. and 1:00
p.m. Based on that conversation, RO 1 issued the complainant a memo dated
April 11, 1995, instructing him that he could no longer take lunch at
the end of the day. The complainant's position is that, according to the
agency's New Handbook, lunch may be taken at an employee's discretion.
Issue 3
The final issue raised by the complainant pertains to a HOSC Management
Control Group (HMCG) meeting held on April 5, 1996. The record reveals
that the complainant left the meeting early and did not return.
Later that day, RO 1 issued the complainant a memo stating it was
important for the complainant to have been at the meeting, and that,
if he was unable to be present for future meetings, he should notify
RO 1 in advance. According to the complainant, the reason he left the
meeting was because he was having an allergy attack.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof in a Title VII case
alleging discrimination is a three-step process. The complainant has
the initial burden of establishing a prima facie case of discrimination.
If the complainant meets this burden, then the burden shifts to the
agency to articulate some legitimate, nondiscriminatory reason for its
challenged action. The complainant must then prove, by a preponderance
of the evidence, that the legitimate reason articulated by the agency
was not its true reason, but was a pretext for discrimination. McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). This analysis is equally
applicable to claims brought under the ADEA. Loeb v. Textron, Inc.,
600 F.2d 1003 (1st Cir. 1979).
The complainant can establish a prima facie case of discrimination based
on race, national origin, and age with regard to Issues 1 through 3 by
showing that: (1) he is a member of the protected groups; and (2) he was
treated differently than a similarly situated nonmember of his protected
groups. See Potter v. Goodwill Industries of Cleveland, 518 F.2d 864,
865 (6th Cir. 1975). We find the complainant has not established a
prima facie case insofar as he has not demonstrated that he was treated
differently than a similarly situated nonmember of any of his protected
groups.<0>
The Commission does find, however, that the complainant can establish
a prima facie case based on reprisal. In so finding, we note that the
complainant filed an EEO complaint during the year prior to the events
in question in which he named RO 1 as the alleged discriminating
official. See Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222
(1st Cir. 1976).
Because the complainant has established a prima facie case, the agency
now has the burden of articulating a legitimate, nondiscriminatory reason
for the challenged actions. Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 254 (1981). We find, based on the testimony of RO 1,
that the agency has met this burden. Regarding the complainant's 1994
performance appraisal, RO 1 offered several reasons why the complainant's
performance did not merit a rating higher than �Fully Successful.� RO 1
also explained that the complainant was issued the two memos in question
because he was taking his lunch hour at an improper time and because he
had left an important meeting without returning.
At this point, the complainant bears the burden of establishing that the
agency's articulated reasons are a mere pretext for discrimination. The
complainant can do this either directly, by showing that a discriminatory
reason more likely motivated the agency, or indirectly, by showing that
the agency's proffered explanation is unworthy of credence. Id. at 256.
In St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), the Supreme
Court held that a fact finder is not required, as a matter of law, to
find discrimination whenever it finds that the employer's explanation is
not credible. The Court further made clear that a fact finder may find
discrimination in such circumstances. The critical factor is that a fact
finder must be persuaded by the complainant that it was discrimination
that motivated the employer to act as it did. According to the Court,
it is not sufficient "to disbelieve the employer; the fact finder must
believe the plaintiff's explanation of intentional discrimination." Id. at
519 (emphasis in original).
We find that the complainant has not established pretext. In so finding,
we note that, although the complainant has registered general disagreement
with the reasons behind RO 1's actions, he has offered nothing which
indicates that those reasons are unbelievable or that the actions were
in retaliation for his prior EEO activity. Accordingly, we find that
the complainant has not established that he was retaliated against based
on that activity.
CONCLUSION
It is the decision of the Commission to AFFIRM the FAD and find the
complainant has not established that he was discriminated against as
alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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:
Jan 19, 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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date Equal Employment Assistant
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.
02 This issue was originally two separate issues.
03 Although comparative evidence is only one method of establishing a
prima facie case, the complainant has not presented any other evidence
sufficient to support an inference of discrimination under the alleged
bases. See Enforcement Guidance on O'Connor v. Consolidated Coin Caters
Corp., EEOC Notice 915.002 (September 18, 1996).