01a00490
03-31-2000
Patrick Y. Fu, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Patrick Y. Fu, )
Complainant, )
) Appeal No. 01A00490
v. ) Agency No. AR000990801
)
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency (�FAD�)
concerning his complaint of unlawful employment discrimination on the
bases of race (Chinese), national origin (Hong Kong), gender (male)
and reprisal (prior EEO activity) in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> The appeal
is accepted in accordance with EEOC Order No. 960.001.
ISSUE PRESENTED
The issue presented herein is whether the complainant demonstrated by
a preponderance of the evidence that the agency discriminated against
him on the bases of his race (Chinese), national origin (Hong Kong),
gender (male) and reprisal (prior EEO activity) when he did not receive
a �superior� rating for the year April 1997 through March 31, 1998.
BACKGROUND
During the relevant time, complainant was employed by the Department of
the Air Force as a audit manager GS-13, located at the March Air Force
Base. On April 9, 1998, complainant received his yearly evaluation that
rated him as �excellent� for the period April 1997 through March 31, 1998.
Upon receipt of his appraisal, complainant confronted his first level
supervisor and inquired
why he had not received a �superior� rating for the above rating period.
In response to complainant's question, the first level supervisor
stated that complainant did not receive a �superior� rating because his
audit report, which was due within the rating period, was in fact six
months late. Moreover, because the audit report was six months late,
complainant did not complete an audit during the April 1997 through March
31, 1998 rating period. Therefore, complainant's supervisor did not
think he deserved a �superior� rating and that a rating of �excellent�
was more indicative of complainant's performance. In addition, the
record reflects that in the early stages of the above appraisal period,
complainant confronted the same supervisor and inquired how he could
receive a �superior� rating, and his supervisor stated that he would
have to hand in his assignments in a timely fashion. Notwithstanding
the above, complainant asserts that he should be entitled to a rating
of �superior� despite his untimely submission of his audit report,
because other audit managers submitted untimely reports and received a
�superior� rating for the same period.
Believing that he was the victim of unlawful employment discrimination,
complainant initiated contact with an EEO Counselor on May 12, 1998.
During the counseling period, complainant stated that he was discriminated
against when he received a rating of �excellent� as opposed to �superior�
for the rating period of April 1997 through March 31, 1998. Unable to
resolve the matter informally, complainant filed a formal complaint
of discrimination on September 2, 1998, alleging that he was the
victim of unlawful employment discrimination on the bases of his race
(Chinese), national origin (Hong Kong), gender (male) and reprisal
(prior EEO activity). The complaint was comprised of the matters for
which complainant underwent EEO counseling, discussed above.
Having failed to respond to the notification to request a hearing or
FAD, the agency, pursuant to 64 Fed. Reg. 37,644, 37,657 (1999) (to
be codified at 29 C.F.R. � 1614.110), issued its FAD on September 2,
1999, finding that the agency did not discriminate against complainant
when it issued him a rating of �excellent� for the rating period April
1997 through March 31, 1998. Specifically, the agency found that even
if complainant established a prima facie case with regards to his claims
of race, national origin, gender and reprisal discrimination, the agency
did in fact articulate a legitimate nondiscriminatory reason for its
action, which the complainant failed to demonstrate was a pretext for
discrimination. On appeal, complainant claims the record is incomplete
and inaccurate.
ANALYSIS AND FINDINGS
Complainant's claims of discrimination based on race, national origin,
gender and reprisal constitute claims of disparate treatment. Claims of
disparate treatment are analyzed under the tripartite scheme of McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973) and Hochstadt
v. Worcester Foundation for Experimental Biology, Inc., 425 Supp. 318,
324 (D. Mass.), affirmed, 545 F.2d 222 (1st Cir. 1976). Although the
initial inquiry in a discrimination case usually focuses on whether the
complainant has established a prima facie case, following this
order of analysis is unnecessary when the agency has articulated
a legitimate nondiscriminatory reason for its actions. Washington
v. Department of the Navy, EEOC Petition No. 0300056 (May 31, 1990).
In such cases, the inquiry shifts from whether the complainant has
established a prima
facie case to whether he or she has demonstrated, by a preponderance of
the evidence, that the agency's reasons for its actions, were merely a
pretext for discrimination. Id.; See Also United States Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 714-17 (1983). Therefore,
in the present case, the Commission will bypass the prima facie stage
of the analysis and focus on whether the complainant has demonstrated,
by a preponderance of the evidence, that the agency's explanation for
its action, was a pretext for discrimination based on race, national
origin, gender and reprisal.
In the present case, the agency articulated a legitimate nondiscriminatory
reason for issuing complainant an �excellent� on his performance
evaluation for the rating period April 1997 through March 31, 1998.
Specifically, the agency stated that since complainant submitted an
untimely audit report, his evaluation could not reflect a �superior�
rating. At this point, the complainant has the burden of demonstrating,
by a preponderance of the evidence, that the agency's explanation is in
fact a pretext for discrimination.
After a thorough review of the all the evidence in the record, the
Commission finds that complainant has failed to meet his burden of
establishing, by a preponderance of the evidence, that the agency's reason
for his rating of �excellent� is a pretext masking race, national origin,
gender and reprisal discrimination. We note, that complainant claims
the agency's explanation is pretextual because other audit managers who
submitted untimely reports received a rating of �superior�. However, the
record lacks any evidence to support such an assertion. Even onappeal,
complainant only sets forth bare assertions that the record is incomplete
and inaccurate.<2>
Therefore, the Commission finds, that complainant, who did not request a
hearing, failed to establish his burden on proof. Moreover, complainant,
in the early stages of the evaluation period in dispute, was specifically
informed from his supervisor that he would receive a �superior� rating
if he submitted his assignments (which include audit reports) in a
timely fashion. Irrespective of this statement by his supervisor,
complainant submitted an audit report over a hundred and eighty days
(180) late and claims that he is entitled to a rating of �superior�.
For these reasons, complainant has failed to demonstrate that his rating
of �excellent� in this case was rooted in discriminatory animus towards
his race, national origin, gender and prior EEO activity.
CONCLUSION
For the reasons set forth herein, the Commission hereby AFFIRMS the
agency's final decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (S1199)
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:
March 31, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________ ________________________
Date Equal Employment Assistant1 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2The Commission notes that complainant argues that a female co-worker,
Ms. Barela, received a �superior� evaluation despite submitting an
untimely audit. However, the Commission will not consider this argument
because complainant has raised this issue for the first time on appeal
when it should have been properly raised during the investigation.