01a10235
01-31-2001
Azeneth Ramon, Complainant, v. Lawrence J. Delaney, Acting Secretary, Department of the Air Force, Agency.
Azeneth Ramon v. Department of the Air Force
01A10235
January 31, 2001
.
Azeneth Ramon,
Complainant,
v.
Lawrence J. Delaney,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A10235
Agency No. LJOJ96002
Hearing No. 360-99-8486X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her 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.<1> The appeal is accepted pursuant to 29
C.F.R. � 1614.405. Complainant alleges she was discriminated against
on the bases of national origin (Hispanic), color (brown), sex (female),
age (50), and reprisal (prior EEO activity) when:
(1) her performance appraisal (PA) for July 1, 1994, to June 30,
1995, was �Fully Successful�; and
(2) her supervisor (S-1) required that she finish work assignments
before departing on annual leave.
For the following reasons, the Commission AFFIRMS the agency's final
order.
The record reveals that complainant, a Contract Specialist, GS-7,
at the agency's Laughlin Air Force Base, Texas, filed a formal EEO
complaint with the agency on March 27, 1996, alleging that the agency
had discriminated against her 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).
Determining that there was no dispute as to any material fact and that
there was sufficient information on which to base a decision, however,
the AJ issued a decision without a hearing, finding no discrimination.
The AJ concluded that complainant established a prima facie case of
discrimination in regard to the adverse employment actions of a low PA
and restrictions on the use of annual leave. The AJ further concluded
that complainant had also established a prima facie case of reprisal,
in that her employer knew about her prior EEO activity and the above
adverse actions happened within such a short period of time thereafter
that one could infer either a retaliatory motive or that there was a
causal connection between participation in the protected EEO activity
and the adverse actions.
The AJ next determined that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that
complainant's former supervisor had given complainant an interim PA
of �Fully Successful� because her performance had never been above
satisfactory, complainant had used excessive sick and annual leave, had
difficulties meeting deadlines, and frequently missed deadlines because
she would take leave on the date that the project was due. S-1 likewise
gave complainant a PA of only �Fully Successful,� since she discovered
that complainant's backlog of work was unusually high and that her
productivity during the prior two-month period had been unusually low.
Furthermore, S-1 required that complainant complete her work assignments
before she used annual leave, as agency policy was only to approve annual
leave requests if work requirements had been met.
The AJ found that complainant did not establish that, more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination or retaliation. In reaching this conclusion, the AJ found
that complainant was well aware that her backlog was not acceptable,
given the approaching end of the fiscal year when contracts had to be
closed out. The agency's final order implemented the AJ's decision.
Complainant makes no new contentions on appeal, while the agency restates
the position it took in its FAD and requests that we affirm its final
order.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that any of the agency's actions were in
retaliation for complainant's prior EEO activity or were motivated by
discriminatory animus toward complainant's national origin, color, sex,
and age. We discern no basis to disturb the AJ's decision. Therefore,
after a careful review of the record, including and arguments and
evidence not specifically addressed in this decision, we AFFIRM the
agency's final order.
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
January 31, 2001
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.