01A14786
09-24-2002
Paul Aviles, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Paul Aviles v. Department of the Navy
01A14786
September 24, 2002
.
Paul Aviles,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A14786
Agency No. DON 99-62204-043
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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
affirms the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a Electronic Integrated Systems Mechanic at the agency's
Marine Corps Logistics Base in Barstow, California. Complainant sought
EEO counseling and subsequently filed a formal complaint on June 16,
1999, alleging that he was discriminated against on the bases of race
(Spanish/Mexican), color (Brown), and reprisal for prior EEO activity
when he was rated as �Exceeds Fully Successful� (EFS) for the rating
period of October 1, 1997 to September 30, 1998.
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. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of reprisal discrimination because his previous
protected activity occurred several years prior to the complained of
event. Regarding his claim of race and color discrimination, the agency
determined that it articulated a legitimate, non-discriminatory reason
for its action which complainant failed to rebut. Specifically, the
agency concluded that complainant did not perform at the �outstanding�
level for the rating period in question, which is why he received
the EFS rating. The agency stated that in order to qualify for an
�outstanding,� an employee must be rated �above fully successful� on all
five rating elements. Complainant received such a rating on four of
the five rating elements. On rating element five, Effective Practice
of Safety and Environmental Compliance, complainant received a �fully
successful� rating. Complainant's second line supervisor (S2) further
stated that to qualify for an �outstanding,� and employee had to perform
work �clearly over and above that required for an EFS.� FAD at 2.
Complainant is silent on appeal. The agency requests that we affirm
its FAD.
The Commission concurs with the agency's determination that
complainant failed to demonstrate by a preponderance of the evidence
that discrimination occurred. Specifically, while complainant argues
that the reason given by his supervisor (S1) for the �fully successful�
on element five was �ridiculous,� complainant has nonetheless failed
to offer any evidence the decision not to rate him as outstanding was
motivated by a discriminatory animus.<1> 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 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
September 24, 2002
__________________
Date
1 Complainant states in his affidavit that S1, in response to
complainant's question about being rated �fully successful� in element
five, stated that complainant allowed people to eat at their desks
improperly. Investigative File at 37.