Jayantilal P. Patel, Appellant,v.F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionJan 29, 1999
01973393 (E.E.O.C. Jan. 29, 1999)

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.