01973393
01-29-1999
Jayantilal P. Patel, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Jayantilal P. Patel v. Department of the Air Force
01973393
January 29, 1999
Jayantilal P. Patel, )
Appellant, )
) Appeal No. 01973393
v. ) Agency No. WE1M95295
) Hearing No. 220-96-5227X
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of national origin (India), race
(Asian and Indian), and reprisal (prior EEO activity), in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq. Appellant alleges he was discriminated against when on or about
August 11, 1995, he received a performance rating of "fully successful."
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED.
The record reveals that appellant, a GS-855-12 Electronics Engineer at
the agency's Wright-Patterson Air Force Base in Ohio, filed a formal EEO
complaint with the agency on November 10, 1995, alleging that the agency
had discriminated against him as referenced above. At the conclusion
of the investigation, appellant requested a hearing before an Equal
Employment Opportunity Commission (EEOC) Administrative Judge (AJ).
Pursuant to 29 C.F.R. � 1614.109(e), the AJ issued a Recommended Decision
(RD) without a hearing, finding no discrimination.
After concluding that appellant established a prima facie case of
discrimination under each basis alleged, the AJ concluded that the agency
articulated legitimate, nondiscriminatory reasons for appellant's rating.
The AJ noted, among other things, that appellant's immediate supervisor
(S1) stated that he based the subject rating on his own observations of
appellant's performance, and that a fully successful rating was warranted
because appellant failed to take initiative, and that he had to lead him
by the hand. S1 denied taking into account a prior altercation with
appellant in May of 1995, where he suspended him for five days, or the
ensuing EEO complaint. S1 stated that he did take into account feedback
he received from appellant's team leader, and feedback he received from
appellant's former supervisor (S2) who supervised appellant for
approximately seven or eight months prior to appellant commencing work for
S1. S2 stated, among other things, that he recalled informing S1 that
appellant was a fully successful performer, and that he agreed with this
rating of appellant by S1. The team leader stated that he felt appellant's
performance on his team was substandard because other engineers had to
provide him directions, instructions and guidance that he would not expect
appellant, as a GS-12, to need. The AJ then concluded that appellant
had not shown by a preponderance of the evidence that the agency's
explanations were pretextual. Specifically, the AJ found that appellant
simply disagreed with the subject rating, and failed to present evidence
that his rating was not deserved other than to suggest that his transfer
of duties from S1 to S2, and the resulting delay in establishing new
performance criteria, were motivated by discriminatory animus. The FAD
adopted the AJ's RD. On appeal, appellant contends, among other things,
that he was continually harassed by S1 because of the altercation with
him leading to the suspension, and because he did not timely receive an
updated performance plan criteria or appraisal itself.<1> The agency
stands on the record and requests that we affirm its FAD.
After a careful review of the record, the Commission finds that the AJ's
RD sets forth the relevant facts and properly analyzes the appropriate
regulations, policies, and laws. The Commission discerns no basis to
disturb the AJ's finding of no discrimination which was based on a
detailed assessment of the record. Therefore, after a careful review
of the record, including appellant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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:
Jan 29, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 We note that appellant raises issues in his appeal that were not
raised in his formal complaint, some of which were the subject of prior
complaints, including his five day suspension for an altercation with
S1, and his prior performance ratings. As such, these issues are not
currently before the Commission.