01A10698
07-27-2001
Ernesto C. Panlilio, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Contract Audit Agency), Agency.
Ernesto C. Panlilio v. Defense Contract Audit Agency
01A10698
July 27, 2001
.
Ernesto C. Panlilio,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Contract Audit Agency),
Agency.
Appeal No. 01A10698
Agency No. M99-09
Hearing No. 170A08243X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) 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
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. Complainant alleges he was discriminated against on the bases
of his national origin (Filipino), age (DOB 1/27/41) and reprisal (prior
EEO activity under Title VII and ADEA) when:
(1) on April 23, 1999, he received a less than �Fully Successful�
mid-year performance rating for the period beginning October 1, 1998,
to March 31, 1999; and
his audit audit work papers were rated as �Minimally Successful� during
the period beginning January 1, 1999, to February 28, 1999.
For the following reasons, the Commission AFFIRMS the agency's final
order.
The record reveals that complainant, a GS-12 Senior Auditor, at the
agency's Northern New Jersey Branch facility, filed a formal EEO
complaint with the agency on July 6, 1999, alleging that the agency
had discriminated against him as referenced above. At the conclusion
of the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
The AJ issued a decision without a hearing, finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of national origin and age discrimination. Specifically, the AJ
found that complainant failed to show that his performance was similar
to other auditors under S1's supervision. In point of fact, the AJ
noted that complainant failed to identify any auditors with performance
deficiencies that were remotely similar to his.
The AJ concluded that complainant established a prima facie case of
reprisal discrimination. Specifically, the AJ found that: (1) complainant
had engaged in prior protected activity, (2) his supervisors were aware
of the prior protected activity, (3) his mid-year appraisal was adverse
treatment, and (4) the adverse treatment occurred close enough to the
protected activity that retaliatory animus may be inferred.
The AJ also concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that
complainant's work output contained substantive deficiencies that
were documented by his supervisors. The AJ noted that complainant
produced insufficient evidence to show that his work did not contain
any deficiencies and that, if any did exist, they were the result of
incorrect and inadequate instructions from his supervisors. The AJ also
noted that complainant had also been rated �Minimally Successful� in FY
1997, before he had filed an EEO complaint naming his supervisor as a
responsible official.
The AJ found that complainant failed to establish that more likely than
not, the agency's articulated reasons for its action were a pretext for
discriminatory or retaliatory motive. In its FAD, the agency adopted
and fully implemented the AJ's decision.
On appeal, complainant contends that in regard to his performance he
was treated differently from similarly situated auditors not in his
protected group. Complainant also contends that there was a genuine
issue of material fact because his performance was at least as good as
similarly situated employees who were not members of his protected group.
The agency requests that we affirm its final agency decision (FAD).
The Commission's regulations allow an AJ to issue a decision without
a hearing when he or she finds that there is no genuine issue of
material fact. This regulation is patterned after the summary judgment
procedure set forth in Rule 56 of the Federal Rules of Civil Procedure.
The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of
material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). In ruling on a motion for summary judgment a court does not
sit as a fact finder. Id. The evidence of the non- moving party must
be believed at the summary judgment stage and all justifiable inferences
must be drawn in the non moving party's favor. Id. A disputed issue of
fact is "genuine" if the evidence is such that a reasonable fact finder
could find in favor of the non-moving party. Celotex v. Catrett, 477
U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103,
105 (1st Cir. 1988). A fact is "material" if it has the potential to
affect the outcome of the case. If a case can only be resolved by
weighing conflicting evidence, summary judgment is not appropriate.
In the context of an administrative proceeding under Title VII, an AJ
may properly consider summary judgment only upon a determination that
the record has been adequately developed for summary disposition.
The courts have been clear that summary judgment is not to be used as
a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st
Cir. 1975). The Commission has noted that when a party submits an
affidavit and credibility is at issue, "there is a need for strident
cross-examination and summary judgment on such evidence is improper."
Pedersen v. Department of Justice, EEOC Request No. 05940339 (February
24, 1995).
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),
aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to
retaliation cases). First, complainant must establish a prima facie
case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination; i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination. Id. at 256.
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
With regard to reprisal discrimination, the Commission has stated that:
The anti-reprisal provision of Title VII protects those who participate
in the EEO process and also those who oppose discriminatory employment
practices. Participation occurs when an employee has made a charge,
testified, assisted, or participated in any manner in an investigation,
proceeding or hearing. Participation also occurs when an employee files
a labor grievance, if the employee raised issues of unlawful employment
discrimination in the grievance. . . . A variety of activities has been
found to constitute opposition . . . . Because the enforcement of Title
VII depends on the willingness of employees to oppose unlawful employment
practices or policies, courts have interpreted section 704(a) of Title
VII as intending to provide �exceptionally broad protection to those who
oppose such practices'. . . ." Whipple v. Department of Veterans Affairs,
EEOC Request No. 05910784 (February 21, 1992) (citations omitted).
Whipple v. Department of Veterans Affairs, EEOC Appeal No. 05910784
(February 21, 1992) (citations omitted).
Finally, we note that Title VII protects a person "where the employee
has a reasonable, good faith belief that the challenged employment
practice violates Title VII, even if the belief is later found to be
mistaken. . . . The mistaken belief may be one of law or of fact."
Whipple, supra, quoting Wolf v. J.I. Case Co., 617 F. Supp. 858, 868
(E.D. Wis. 1985).
After a careful review of the record, the Commission finds that the AJ did
not err when he concluded that there were no genuine issues of material
fact in this case. In finding no discrimination, the AJ relied on the
undisputed evidence regarding complainant's work performance conducting
audits. We also find that complainant has failed to establish a prima
facie case of national origin and age discrimination.
The record reflects that complainant produced assignments that were
seriously deficient. Complainant's supervisor duly noted the deficiencies
after reviewing each audit. In addition, none of the other auditors
who reported to that same supervisor as complainant exhibited similar
performance deficiencies. In point of fact, complainant exceeded his
budgeted hours on several assignments. In addition, on two audits he
failed to use the correct audit programs even though he was provided
guidance regarding which audit programs were to be used. The record
evidence also reveals, and complainant does not dispute, that these audits
were within the capability of an auditor with complainant's experience
and are expected to be performed without supervisory guidance.
The record also establishes that complainant was assigned two Contract
Audit Closing Statements that required verification of audit work
done in prior years. Complainant, however, failed to verify time
and material rates and hours. In addition, on a Purchase Existence
Review complainant failed to perform a physical observation of the
contractor's inventory even though the physical observation was the
entire purpose of the audit. Consequently, we find that the agency
has proffered legitimate, nondiscriminatory reasons for its actions.
We also find that complainant did not show that these proffered reasons
were a pretext for a discriminatory motive.
We further find that complainant has established a prima facie case
of reprisal. The record reflects that complainant engaged in prior
protected activity on six prior occasions. During the relevant time
period, four EEO complaints were filed. One of the supervisors that
complainant listed as a responsible official in the instant action was
also named in a prior EEO complaint that he filed on February 11, 1998.
The record reflects that the rating complainant received on April 23,
1999, was a mid-year progress report. Subsequently, complainant received
an annual rating of �Fully Successful� for the year. The record also
establishes that complainant's reason for using an incorrect audit
program was that his supervisor had failed to tell him which program
to use. We do not find this argument persuasive. The record evidence
shows that GS-12 auditors are expected to know which audit program to
use without supervisory instructions. In addition, none of the other
GS-12 auditors were told which program to use, yet complainant was the
only auditor to use the wrong program.
Under these circumstances, we find that the agency has proffered
legitimate nondiscriminatory reasons for its actions. We further find
that complainant has failed to present sufficient evidence to show that
any of the agency's actions were a pretext for retaliatory motive.
We discern no basis to disturb the AJ's decision. Therefore, after a
careful review of the record, including complainant's contentions on
appeal, the agency's response, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the agency's final order dated
October 4, 2000.
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
July 27, 2001
__________________
Date