Jose Martinez, Complainant,v.William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.

Equal Employment Opportunity CommissionDec 20, 2000
01982418 (E.E.O.C. Dec. 20, 2000)

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).