01a52322
05-26-2006
Charles R. Adams, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.
Charles R. Adams,
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A52322
Agency No. 040355
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's December 13, 2004 final decision (FAD) in the
above-entitled matter. Complainant alleged that the agency discriminated
against him on the bases of race (African-American), color (Brown), age
(D.O.B. 07/21/47), and reprisal for prior protected EEO activity under
Title VII of the Civil Rights Act of 1964 when he was not recommended
for a Performance Bonus along with other National Resources Conservation
Service (NRCS) employees who received a Superior rating for the Fiscal
Year 2003 rating cycle.
The FAD found that while complainant established a prima facie case
of discrimination and retaliation, the agency articulated legitimate,
nondiscriminatory reasons for its actions. Namely, the FAD noted that
complainant did not receive a bonus for the Fiscal Year 2003 rating cycle
due to his failure to fulfill his financial management responsibilities.
The FAD found that the record indicated that complainant overspent his
budget allocation by $285,000, and he was advised of his failure to
fulfill his financial management responsibility by letter dated April
28, 2003. The FAD noted that complainant and one other Senior Executive
Service (SES) employee (Caucasian; over age 40; no prior EEO activity)
were not recommended for the performance bonus. The FAD further found
that complainant failed to proffer evidence which established that the
agency's articulated reasons were more likely than not a pretext for
discrimination. Complainant has made no arguments on appeal.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred. We find that the record indicates
that complainant did not receive the performance bonus for the 2003
rating cycle due to his failure to fulfill his financial management
responsibilities. We note that the record contains the affidavit
testimony of the Chief of the NRCS, who was complainant's second-line
Supervisor. Investigative File (IF) at Exhibit 9. The Chief of the NRCS
stated that complainant received a performance of Superior for Fiscal Year
2003, but he did not receive a bonus due to shortcomings in his financial
management responsibilities, as he spent $285,000 over his allocation
for the fiscal year. The Chief of the NRCS stated that he jointly made
the decision not to recommend complainant for a performance bonus with
the Associate Chief of the NRCS, and there were a total of two (2) SES
employees who were not recommended for a performance bonus that year. Id.
The agency's Supervisory Budget Analyst (SBA) provided affidavit testimony
which stated that complainant was over obligated for Fiscal Year 2003
by over $300,000, and as such complainant was in direct violation of
his fiscal responsibilities as outlined in the letter dated April 28,
2003. IF at Exhibit 11. The SBA stated that complainant's financial
shortcomings would be sufficient to deny him a performance bonus. Id.
Therefore, after a careful review of the record, including arguments and
evidence not specifically addressed in this decision, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
_____5-26-06_____________
Date
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01A52322
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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01A52322