Joaquin Montoya, Appellant,v.F. Whitten Peters, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionJan 29, 1999
01971440 (E.E.O.C. Jan. 29, 1999)

01971440

01-29-1999

Joaquin Montoya, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Army, Agency.


Joaquin Montoya v. Department of the Army

01971440

January 29, 1999

Joaquin Montoya, ) Appeal No. 01971440

Appellant, ) Agency Nos. KHOF95357

v. ) KHOF95549

F. Whitten Peters, ) Hearing Nos. 360-96-8554X

Acting Secretary, ) 360-96-8740X

Department of the Army, )

Agency. )

DECISION

The Commission accepts appellant's timely appeal from a final agency

decision ("FAD") concerning his complaints of unlawful employment

discrimination in violation of Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. �2000e et seq. See EEOC Order No. 960.001. In his

complaints, appellant alleged that he was discriminated against based on

(a) his national origin (Hispanic) when he was suspended for three days;

and (b) his prior EEO activity he received a performance rating of "Fully

Successful" for 1994-1995.

At the time in question, appellant was an Industrial Equipment Maintenance

Supervisor, WS-16. One of appellant's subordinate employees (the "Section

Chief," Hispanic) complained that appellant referred to him as having a

drinking problem and being an alcoholic in front of the Section Chief's

subordinates. Appellant's immediate supervisor, the Chief of the Plant

Management Division (the "Chief," non-Hispanic) investigated the complaint

and proposed to suspend appellant for five days for "making malicious,

unfounded statements against [the Section Chief] with the intent to

damage the reputation, authority and official standing of a subordinate

supervisor in the minds of his subordinates." In his response to the

notice of proposed suspension, appellant maintained that his comments

"were made in [a] casual, joking manner around employees who are also my

personal friends" and argued that the proposed discipline was too harsh.

Report of Investigation ("ROI") at 100. The Deputy Director, Technology

and Industrial Support (non-Hispanic) ultimately suspended appellant for

three days, with two days served over the weekend, with the result that

appellant lost one day's pay. Appellant timely sought EEO counseling,

and filed a formal EEO complaint alleging that the suspension constituted

discrimination on the basis of his national origin.

In September 1994, appellant was given his performance standards for the

1994-1995 rating cycle. Appellant also was given additional standards,

referred to as Performance Plan Initiatives ("PPI"). The Chief maintained

that he gave appellant the PPI because, unlike the other branch chiefs,

appellant was not responding to oral requests. In March 1995, the

Chief counseled appellant about his performance and warned him that his

performance was below the level of his previous performance ratings.

On August 29, 1995, appellant was given a performance rating which

awarded him 57 points and an overall rating of "Fully Successful." In

the past, appellant had been awarded more points and received higher

overall ratings. Appellant timely sought EEO counseling, and filed a

formal EEO complaint alleging that his appraisal constituted retaliation

for his prior EEO complaint challenging his suspension.

Appellant's complaints were accepted and investigated by the agency.

Thereafter, appellant timely requested a hearing before an EEOC

Administrative Judge ("AJ"). After a two-day hearing, during which

appellant was represented by counsel, the AJ issued a recommended decision

("RD") finding no discrimination.

Regarding allegation (a), the AJ noted that appellant alleged that a

number of non-Hispanic employees made derogatory remarks about other

employees, or engaged in similarly improper or inappropriate behavior,

and were either not disciplined at all or disciplined less severely.

In his testimony, the Chief either maintained that the comparative

employees were not under his jurisdiction or otherwise offered

justification for the actions taken in their cases. At the hearing,

appellant asserted that he had only said that the Section Chief was on

sick leave because "he probably had one too many" and that he had no

intention of undermining the Section Chief's authority by this remark.

HT at 374. The AJ found "that [appellant] admitted that he made a

comment in the presence of [the Section Chief's] subordinate employees

which had the effect of diminishing [the Section Chief's] stature as a

supervisor." RD at 11. The AJ found that appellant failed to establish

that the agency's articulated, nondiscriminatory reasons for its actions

were pretextual and concluded that appellant failed to establish that

he "was discriminated against or reprised against in violation of Title

VII." Id.

With respect to allegation (b), the AJ noted that appellant had received

higher ratings in the past and "that the timing of this low appraisal,

following so closely after [appellant] filed his EEO complaint is

suspicious." RD at 13. Nonetheless, the AJ found sufficient evidence

that there were shortfalls in appellant's performance and was not

persuaded that the agency's articulated, nondiscriminatory reasons for

his performance rating were pretextual.

In its FAD, the agency adopted the RD. Appellant, through his counsel,

timely appeals and makes a number of arguments. For example, the brief

claims that the AJ failed to consider properly appellant's evidence on

both national origin and reprisal discrimination. The brief argues that

the AJ excluded "crucial pretextual documentary evidence" offered by

appellant at the hearing to the effect that the Chief harbored animosity

toward appellant because he protested pressure the Chief allegedly placed

on the Section Chief to raise another employee's performance rating in the

early 1990's. See HT at 399-409. However, counsel "agree[d] with [the

AJ] that" that this alleged animosity arose from appellant's "failure

to do what [the Chief] wanted" regarding the performance appraisal,

rather than arising from appellant's prior EEO activity. HT at 405.

Nonetheless, counsel argued that, because appellant and the Section Chief

were Hispanic and the Chief and the other employee were not, this event

indicated bias based on national origin. After a lengthy discussion,

the AJ ultimately ruled that the proffered evidence was too far removed

from the time in question, a ruling to which counsel replied: "That's

fine." HT at 409. The brief asserts that the AJ erred in holding

that appellant "admitted that he made a comment in the presence of

[the Section Chief's] subordinate employees which had the effect of

..."(RD at 11, see supra), stating that appellant "denied that he had"

admitted making an improper remark. However, after a careful review of

the hearing transcript, appellant's responses and affidavits contained in

the ROI on this complaint, and other material, the Commission finds this

contention to be without merit. The brief contends that the AJ ignored

evidence regarding appellant's appraisal. Finally, the brief argues

that the AJ erred in finding that appellant failed to establish pretext.

In its comments on the appeal, the agency contends that the AJ's ruling

were proper, that the AJ properly evaluated the evidence, and that the

AJ correctly determined that appellant failed to establish pretext.

After a thorough review of the record (including argument and evidence

not specifically addressed herein), the Commission finds that the RD

adequately set forth the relevant facts and analyzed the appropriate

regulations, policies and laws. The Commission is not persuaded that

the AJ abused his discretion in his rulings on the relevancy of certain

witnesses or proferred testimony. The Commission notes that it generally

will not disturb the credibility determination of an AJ when, as here,

such determinations are based on the AJ's observations of the demeanor

of the witnesses. Esquer v. United States Postal Service, EEOC Request

No. 05960096 (September 6, 1996); Willis v. Department of the Treasury,

EEOC Request No. 05900589 (July 26, 1990). Accordingly, the Commission

discerns no basis to disturb the AJ's finding that appellant failed to

establish that he was subject to the discrimination or retaliation alleged

and it is, therefore, the decision of the Commission to AFFIRM the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

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 this

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 this 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 this 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 this 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