Patrick Y. Fu, Complainant,v.F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionMar 31, 2000
01a00490 (E.E.O.C. Mar. 31, 2000)

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.