01981863
12-06-2000
Ronald C. Bimes, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Finance and Accounting Service), Agency.
Ronald C. Bimes v. Department of Defense
01981863
December 6, 2000
.
Ronald C. Bimes,
Complainant,
v.
William S. Cohen,
Secretary,
Department of Defense,
(Defense Finance and Accounting Service),
Agency.
Appeal No. 01981863
Agency No. DFAS-CO-000J-97-027
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.; and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1>
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant
alleged that he was discriminated against on the bases of disability
(depression), sex (male), age (47), and reprisal (prior EEO complaints)
when he received a performance appraisal (PA) on September 20, 1995,
after being on performance standards for only 55 days.
The record reveals that during the relevant time, complainant was employed
as a Financial Specialist, GS-501-11, at the agency's Columbus, Ohio
facility. Believing he was a victim of discrimination, complainant
sought EEO counseling and subsequently filed a formal complaint on
March 11, 1997. 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.
Complainant requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant was not discriminated
against on any basis when he was issued the PA. It noted the testimony
of both the rating official, who was his first-level supervisor (S-1),
and the approving official, who was his second-level supervisor (S-2),
that they were unaware that complainant's effective retirement date
was July 26, 1995. It was this effective retirement date that made the
ostensible rating period under performance standards of May 2 - August 1,
1995, just shy of the 90-day minimum required by four days.
On appeal, complainant contends that both S-1 and S-2 were aware of his
effective retirement date at the time they made up and approved the PA,
and encloses a copy of a Form SF-50, �Request for Personnel Action�
for disability retirement by complainant. This lists a �Proposed
Effective Date�of �ASAP� (typed in) and an effective date of �7/26/95"
(inked in). S-2 signed and dated the form �7/12/95,� while the Director
of the Accounting Directorate, who authorized the request for disability
retirement, signed and dated the form �7/14/95.� A Personnel Management
Specialist (PMS), who had initiated the form, next signed and dated the
form as approved on �7/26/95,� and also inked in the effective date of
the retirement as �7/26/95.� The PMS testified that in arriving at this
date, she remembered �clearly sitting and calculating the number of hours
of sick leave to his [complainant's] credit so that I could effect his
retirement when his leave entitlement was exhausted.� The PMS further
testified that she did not then recall notifying or advising complainant's
�management chain� as to the effective date of complainant's retirement,
which was based on the foregoing calculations.
In this regard, S-1 testified that he never received a copy of the SF-50
stating that complainant was placed on disability retirement effective
July 26, 1995. Rather, he noted that complainant had requested and
was granted annual and sick leave commencing June 23, 1995, which took
him up to August 5, 1995. S-1 further testified that to his knowledge,
complainant could not begin to draw a retirement annuity until after his
last day of pay which, according to the Office of Personnel Management,
would be the day that his sick leave was exhausted. S-2 also testified
that to the best of his knowledge, complainant was under performance
standards for 90 days before his rating was prepared, in accordance
with agency regulations. S-2 further stated that he did not know the
effective date of complainant's retirement until August 11, 1995, and
that he never received a completed copy of the complainant's Form SF-50
(which would show the effective date of complainant's retirement) to
put in complainant's personnel file.
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); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)
(requiring a showing that age was a determinative factor, in the sense
that "but for" age, complainant would not have been subject to the adverse
action at issue); 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 it articulated legitimate, non-discriminatory
reasons for its actions, which complainant has not shown to be a pretext
for discrimination on any basis.<2> In reaching this conclusion, we
note that S-2 signed the SF-50 Form two weeks before the PMS inked in
the effective date of complainant's retirement, that the PMS testified
that she did not then notify or advise complainant's management chain of
the effective date of complainant's retirement, that the record evidence
shows that both S-1 and S-2 were unaware that complainant's retirement
was effective July 26, 1995, with its attendant nullifying effect on
the minimum rating period, but had valid reasons for believing that
complainant had been under performance standards for the required 90
days, given his request for sick and annual leave from June 23, 1995,
through August 5, 1995. Thus, the preponderance of the evidence leads
to the conclusion that complainant was issued a performance appraisal
shy of the minimum rating period required by four days not because of
any discriminatory animus, but rather because S-1 and S-2, the rating
and approving officials, lacked the knowledge through no fault of their
own of complainant's effective date of retirement and its consequent
negative effect on the minimum 90-day rating period. Complainant failed
to present any evidence that would invalidate this conclusion.
Therefore, after a careful review of the record, including complainant's
other contentions on appeal, and arguments 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 6, 2000
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.
2For purposes of this decision, we assume, arguendo, without deciding
the issue, that complainant is an individual with a disability under
the Rehabilitation Act.