01971872
10-15-1999
John T. Atkins, Jr., Appellant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
John T. Atkins, Jr. v. Department of the Interior
01971872
October 15, 1999
John T. Atkins, Jr., )
Appellant, )
) Appeal No. 01971872
v. ) Agency No. WGS-95-027
)
Bruce Babbitt, )
Secretary, )
Department of the Interior, )
Agency. )
________________________________)
DECISION
On December 19, 1996, John T. Atkins, Jr. (hereinafter referred to
as appellant) initiated an appeal to the Equal Employment Opportunity
Commission (Commission) from a final decision of the agency concerning
his complaint of discrimination in violation of the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq.
The final agency decision was dated November 21, 1996. Accordingly,
the appeal is timely, and is accepted in accordance with the provisions
of EEOC Order No. 960, as amended.
The issue on appeal is whether appellant proved, by a preponderance of
the evidence, that he was discriminated against on the basis of his age
(52), and in reprisal for prior EEO activity when he received a "minimally
successful" performance appraisal for the period ending March 31, 1995.
Appellant filed a formal EEO complaint in July 1995, raising the
above-referenced allegation of discrimination. The agency accepted
appellant's complaint for processing, and conducted an investigation.
Thereafter, the agency provided appellant with a copy of the investigative
report, and notified him of his right to either an administrative hearing
or a final agency decision in the matter. At appellant's request,
the agency issued a final decision dated November 21, 1996, finding
that appellant had not been subjected to discrimination or reprisal.
It is from this decision that appellant now appeals.
A review of the record reveals that appellant, a GS-12 level Hydrologist
with the agency's U.S. Geological Survey, received a rating of "minimally
successful" for the period from April 1994 through March 1995. Appellant
exhibited satisfactory performance on 3 critical elements; however,
he received ratings of "fails" with regard to two required elements,
specifically Project Proposal Preparation and Technology Transfer.
Appellant's supervisor noted that appellant did not submit any written
proposals or discuss any ideas which led to proposals, and failed to
identify any training needs or initiate training. Appellant's supervisor
and the District Chief averred that appellant's work in the two required
areas was not at the level expected from a higher-grade employee.
Appellant's supervisor indicated that he mentioned the failure to submit
proposals during appellant's interim review, and that appellant did not
suggest any changes to the appraisal.
Appellant's complaint presents the issue of whether the agency subjected
him to disparate treatment on the bases of his age and prior EEO activity.
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), provides an
analytical framework for proving employment discrimination in cases
in which disparate treatment is alleged. These same standards apply
to complaints of reprisal. See Burrus v. United Telephone of Kansas,
Inc., 683 F.2d 339 (10th Cir. 1982), cert. denied, 459 U.S. 1071 (1982).
First, appellant must establish a prima facie case by presenting enough
evidence to raise an inference of discrimination. McDonnell Douglas,
supra, at 802. The agency may rebut appellant's prima facie case by
articulating legitimate, nondiscriminatory reasons for its action, and
if the agency does so, appellant must show, by a preponderance of the
evidence, that the agency's reasons are a pretext for discrimination.
Id.
In the case at hand, appellant acknowledged that he had not initiated any
prior EEO complaints. Appellant asserted that his supervisor retaliated
against him in order to dissuade two co-workers with whom he was friendly
from filing complaints. The Commission finds, however, that merely
associating with individuals who have filed complaints is insufficient to
constitute protected activity within the meaning of the EEOC Regulations.
Appellant does not assert that he was called as a witness or otherwise
participated in his co-workers' complaints. Thus, the Commission finds
that appellant has failed to establish a prima facie case of reprisal.
With regard to appellant's allegation of age discrimination, the
record shows that younger employees received higher ratings than
appellant. Nevertheless, appellant's supervisor stated that appellant
failed to perform at an acceptable level on 2 required elements of his
performance plan. Appellant questioned his supervisor's assessment of his
performance; however, appellant did not offer any specific information
regarding proposals or training that he initiated. It is noted that
appellant acknowledged receiving a performance plan containing the
elements in question in May 1994. Appellant has not shown that his
evaluation was undeserved based upon his performance. Therefore, the
Commission finds that appellant failed to prove, by a preponderance of
the evidence, that he was subjected to age discrimination with regard
to his performance rating.
CONCLUSION
Based upon a review of the record, and for the foregoing reasons, it is
the decision of the Commission to affirm the agency's final decision of
no discrimination based on age and reprisal.
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. �l6l4.604(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:
Oct.15, 1999
DATE Carlton M. Hadden
Acting Director
Office of Federal Operations