01982418
12-20-2000
Jose Martinez, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Jose Martinez v. Defense Logistics Agency
01982418
December 20, 2000
.
Jose Martinez,
Complainant,
v.
William S. Cohen,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 01982418
Agency No. AA-95-004
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq.,<1> and the Rehabilitation Act of
1973, as amended, 29 U.S.C. � 701 et seq. <2> The appeal is accepted
pursuant to 29 C.F.R. � 1614.405.
Complainant alleged that he was discriminated against on the bases
of national origin (unstated),<3> disability (walking, overweight)
and reprisal (prior EEO activity) when: (a) On January 12, 1995, new
performance standards were provided to complainant which had previously
been denied; (b) Guidance regarding TDY and leave-related matters was
provided to complainant in conflict with regulations; (c) Complainant's
requests for official time to conduct EEO complaint preparation were
met with denials and obstructions; (d) Complainant's e-mail messages to
management officials concerning his area of responsibility were never
answered; and (e) Complainant's informal flexible tour of duty was
continually changed.
The record reveals that during the relevant time, complainant was
employed as a Computer Specialist, GS-334-12, for the Systems Automation
Center, New Cumberland, Pennsylvania. Believing he was a victim of
discrimination, complainant sought EEO counseling and subsequently filed a
formal complaint on May 16, 1995. At the conclusion of the investigation,
complainant was informed of his right to request a hearing before an EEOC
Administrative Judge or, alternatively, to receive a final decision by
the agency. When complainant failed to respond within the time period
specified in 29 C.F.R. � 1614, the agency issued a final decision (FAD).
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of disparate treatment on the basis of disability
or national origin with regard to his allegations. In addition, the
agency found that complainant failed to establish a prima facie case
of reprisal with regard to his allegations. Lastly, the agency found
that, even assuming (without finding) that complainant was a qualified
individual with a disability as defined under the Rehabilitation Act, the
record does not establish that management failed to provide a reasonable
accommodation for such alleged disability. Specifically, the agency
noted that the record contains no evidence (medical or otherwise) that
complainant requested or was in need of an accommodation.
In addition to finding no prima facie case of discrimination or
reprisal, the Agency also found that it articulated legitimate,
non-discriminatory reasons for its employment action which were not
rebutted by the complaint. Specifically, with respect to allegation 1,
since complainant failed to provide clarification of his allegation,
the agency interpreted the allegation as a statement that complainant
believed he was harmed by not being appraised under the new performance
standards for the rating period that ended on March 30, 1994, and by
having his rating under the prior standards remain in effect until
the next rating period that ended on March 30, 1995. According to the
record, complainant's reviewing supervisor signed off on complainant's
performance plan on December 28, 1994. The revised standards were issued
to complainant on January 12, 1994. Complainant's supervisor explained
that he did not include these new standards in complainant's performance
review because of the agency regulation that performance plans may not
be revised during the last 90 days of the appraisal period.
With respect to allegation 2, complainant's supervisor explained that the
TDY and leave-related guidance that complainant received was the same
as that provided by all employees and was based upon verbal guidance
from Headquarters.
With respect to allegation 3, complainant's supervisor explained that
in granting or denying complainant's requests for official time to work
on his complaint, she relied on the guidance given to her by the EEO
office in Columbus, Ohio regarding what amount was �reasonable.� She
further explained that the different amounts of time that were granted
complainant were in response to different requests and were appropriate
to the situation. For example, complainant was granted 10 days once, but
that was when he was required to travel to the Netherlands. On another
occasion, complaint was denied a request for official time spent away
from the work-site. According to complainant's supervisor, such request
was denied because she understood that �official time� was to be used
only at the work-site.
With respect to allegation 4, complainant's supervisor stated that she
answered his e-mails by telling him verbally what she expected him to do.
One management official was unavailable to respond since he was retired.
Another management official stated that he was listed as a recipient
of a courtesy copy of only one e-mail but did not recall ever seeing
any e-mails.
With respect to allegation 5, the agency notes that there is nothing
in the record to support the finding that complainant's schedule was
continually changed. The record contains only one letter from complainant
requesting a change in his tour of duty and his supervisor's letter
denying such request.
Based on the foregoing, the agency determined that even assuming that the
record establishes a prima facie case of discrimination and reprisal,
the record as a whole does not establish, by a preponderance of the
evidence, that complainant was discriminated against as alleged.
Complainant raises no contentions on appeal. The agency requests that
we affirm its FAD.
Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973); Prewitt v. United States Postal Service, 662 F.2d 292,
310 (5th Cir. 1981) (applying McDonnell Douglas to disability cases);
and Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to reprisal cases), the Commission agrees
with the agency that complainant failed to establish a prima facie case
of national origin discrimination, disability discrimination and/or
reprisal.<4>
However, with respect to claim 1, we disagree with the agency's
interpretation of complainant's claim. We find from the record, that
complainant was attempting to reopen a prior grievance (filed 9 months
earlier) involving a 1994 performance rating. Complainant failed
to present any basis for his apparent contention that his 1993-1994
performance ratings were too low. In addition, complainant failed to
identify similarly situated individuals outside his protected classes
who received higher ratings. Since Complainant failed to provide any
specific information with respect to this claim,<5> we agree with the
agency's finding that complainant failed to present a prima facie case
of reprisal or discrimination.
With respect to claim 2, the record indicates that complainant sent an
e-mail to his supervisor complaining of certain provisions of a newly
issued guidance as follows: (a) the requirement that an employee on TDY
revert to an eight-hour per day work schedule; and (b) the policy that
compensatory time is not always approved in conjunction with overnight
travel. Without any information from complainant in the record, it
appears that complainant was complaining of a new policy verbally handed
down from headquarters which applied equally to all employees. There is
no evidence in the record that such policy did not apply equally among
all employees. Accordingly, we agree with the agency's finding that
complainant failed to meet his prima facie case burden with respect to
this claim.
With respect to claim 3, the record shows that in a prior EEO
complainant, complainant was provided 10 days of administrative time
due to the fact that he had to travel to the Netherlands. However,
in the pending complaint (a local matter) complainant was provided 10
hours of administrative leave. Complainant stated that he believes
that such disparity in time was arbitrary and requests �ample time� of
administrative leave outside of the workplace to prepare the pending
complaint. Without providing an explanation as to what amount of time he
is seeking and how 10 hours of administrative leave is unreasonable, we
find complainant has failed to meet his prima facie burden with respect
to this claim.<6>
With respect to claim 4, since complainant failed to show how he was
treated differently from others outside his protected classes, or provide
other evidence of discrimination, we agree with the agency's finding
that complainant failed to present a prima facie case of reprisal or
discrimination with respect to this claim. In addition, management
officials stated that complainant's questions were all responded to
verbally.
With respect to claim 5, the record indicates that complainant was
denied one request to make up time on a Saturday. There is no evidence
in the record whatsoever that his flexible schedule was continuously
being changed. In addition, there is no evidence in the record showing
complainant was treated less favorably with respect to scheduling than
other employees outside his protected classes. Nor does the record show
any other evidence of discriminatory animus with respect to this claim.
Accordingly, we agree with the agency's finding that complainant failed
to present a prima facie case of reprisal or discrimination.
While the agency addresses a reasonable accommodation claim in its FAD,
we note that there is no indication in the record that complainant has
made such a claim. However, assuming a reasonable accommodation claim
has been alleged by complainant, we find no evidence in the record that
complainant ever requested a reasonable accommodation. Moreover, there
is no evidence in the record that indicates that complainant needed a
reasonable accommodation to perform the essential functions of his job.
Accordingly, we agree with the agency's findings of no discrimination
on this issue.
Therefore, after a careful review of the record and evidence not
specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the office of federal operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must 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 timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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. 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 (Z1199)
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:
December 20, 2000
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: www.eeoc.gov.
3 Although complainant does not state his national origin in this
complaint, his prior EEO complaint indicates that his national origin
is �Mexican.�
4 For the purpose of this decision, we assume (without deciding)
that complainant meets the definition of a qualified individual with
disability under the Rehabilitation Act.
5 We note that despite adequate notice and opportunity, complainant
failed to provide information and clarification in response to the
investigator's requests.
6 We also find this claim properly categorized as a �spin-off� claim
which should have been dismissed by the agency. Complaints about the
processing of complainant's former complaint should instead be referred
to the agency official responsible for complaint processing. See 29
C.F.R. �1614.107(a)(8).