01981989
11-24-1999
James P. Bailey, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
James P. Bailey, )
Complainant, )
) Appeal No. 01981989
v. ) Agency No. DON-96-00183-019
) Hearing No. 120-97-4143X
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) concerning his complaint of unlawful employment
discrimination on the bases of race (Black), religion (Pentecostal
Holiness Christian), sex (male), and age (46), in violation of 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 (ADEA), as amended,
29 U.S.C. �621 et seq.<1> Complainant claims that he was discriminated
against when his fiscal year 1995 summary performance appraisal was rated
as �exceeds fully successful� rather than �outstanding.� We accept the
appeal in accordance with EEOC Order No. 960.001. For the reasons that
follow, the agency's decision is AFFIRMED.
The record reveals that complainant, a medical records clerk at the Naval
Medical Center in Portsmouth, Virginia, filed a formal complaint with
the agency in March 1996, claiming discrimination as referenced above.
At the conclusion of the investigation, complainant requested a hearing
before an Equal Employment Opportunity Commission (EEOC) Administrative
Judge (AJ). Following a hearing, the AJ issued a Decision (AJD) finding
no discrimination. The FAD adopted the AJD.
The AJ concluded that complainant failed to establish a prima facie
case of discrimination on any of the bases claimed because he failed
to demonstrate that similarly situated employees not in his protected
classes received a summary �outstanding� rating for the fiscal year
1995 under similar circumstances. See McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). First, the AJ found that none of complainant's
co-workers<2>, i.e. those performing essentially the same job for the same
supervisor, received an �outstanding� rating for this period. Second,
the AJ determined that the other comparators identified by complainant
were not �similarly situated� because they performed different work under
different circumstances. Third, the AJ held that complainant's contention
that other employees received �outstanding� ratings but did not deserve
them, even if true, was not relevant to the instant determination.
The AJ then concluded that even if complainant had established a
prima facie case of discrimination under the claimed bases, the agency
articulated legitimate, nondiscriminatory reasons for its actions. The
AJ found that it was the agency's established practice to award
�outstanding� summary ratings to those employees who received no less than
�exceeds fully successful� in each element of the appraisal. Complainant
failed to do this in Element B and Element F, in which he received �fully
successful.� Element B rated the performance of several different
duties regarding the handling and maintenance of patient records, and
statistics were kept on each medical records clerk regarding these duties.
The rating of Element B was largely based on the employees performance as
reflected by these statistics. Contrary to complainant's assertion that
his statistics were falsified, the AJ found that the evidence showed them
to be accurate and reliable, and fully justified his rating in Element B.
Element F rated organizational support. The AJ found that many witnesses
testified credibly that complainant was disrespectful to his supervisor
and team leader, as well as others, and that he engaged in the discussion
of religion<3> to an excessive extent, so much so that it interfered
with the performance of his own work and that of co-workers. Therefore,
the AJ concluded that complainant's rating in Element F was justified.
The AJ also determined that complainant failed to set forth evidence
that any of these reasons were a pretext for discrimination under any
of the claimed bases, finding instead that the weight of the evidence
in this regard was decidedly in favor of the agency. The AJ also held
that the difference in an �exceeds fully successful� summary rating,
and an �outstanding� summary rating was very slight, and the decision to
award one or the other is appropriately within a supervisor's discretion.
Complainant makes no statement on appeal. The agency requests that we
affirm its FAD.
Upon review, the Commission finds that the AJD summarized the relevant
facts and referenced the correct regulations, policies, and laws.
We find, as did the AJ, that the evidence of record was insufficient to
create even a threshold inference of discrimination, and also devoid of
any evidence to show that discriminatory animus motivated the agency's
actions. The AJ based his decision on a detailed assessment of the record
and the credibility of the witnesses. We discern no reason to disturb
the AJ's finding of no discrimination.<4> Accordingly, we AFFIRM the FAD.
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).
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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
November 24, 1999
________________
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: _________________________.
__________________________
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
2Complainant's co-workers were all Black females, all having a different
religion, of various ages, with some younger than 40 years of age.
3Complainant claimed that his discussion of religion was protected
under the Clinton Administration's new religion policy, as contained
in the �Guidelines on Religious Exercise and Expression in the Federal
Workforce.� However, the AJ found that the policy guidelines provide that
such discussion is to be limited when it interferes with the performance
of employees' duties, so that complainant's excessive religious discussion
was not protected by this policy, and the diminution in his rating for
this reason was not motivated by discriminatory animus based on religion.
4Under the Commission's new regulations, an AJ's findings of fact will be
upheld if supported by substantial evidence. See 64 Fed. Reg. 37644,37659,
(1999) (to be codified at 29 C.F.R. �1614.405(a)). Substantial evidence
is defined as �such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.� Universal Camera Corp. v. N.L.R.B.,
340 U.S. 474 (1951).