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