Edward O. Adams, Complainant,v.Daniel S. Goldin, Administrator, National Aeronautics and Space Administration, Agency.

Equal Employment Opportunity CommissionJan 19, 2000
01985878 (E.E.O.C. Jan. 19, 2000)

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).