01A12018
12-13-2001
Donald E. Bullock, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Donald E. Bullock v. Department of the Air Force
01A12018
12-13-01
.
Donald E. Bullock,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A12018
Agency No. AR000010123
Hearing No. 210-AO-60100X
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. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges he
was discriminated against on the basis of reprisal (prior EEO complaint
activity under Title VII) when:
he was not permitted to act as the Infrastructure Superintendent for
the period April 8-9, 1997;
he received a fully successful rating and appraisal factors of all fives
for his 1997 and 1996 performance appraisals on or about May 2,1997; and
he received a fully successful rating and appraisal factors of all
fives for his 1995 performance appraisal on or about May 2, 1997.
For the following reasons, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the agency's final order, because
the Administrative Judge's issuance of a decision without a hearing was
appropriate and a preponderance of the record evidence does not establish
that discrimination occurred.
BACKGROUND
The record reveals that complainant, a High Voltage Electrical Supervisor,
WS-2810-10, in the 42nd Civil Engineering Squadron, Maxwell Air Force
Base-Gunter Annex, Alabama, filed formal EEO complaints with the
agency on May 22, 1997, and July 30, 1997, alleging that the agency
had discriminated against him as referenced above. The complaints
were consolidated. 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, which the agency adopted
in its final order.
The record reflects that with respect to issue (1), complainant had only
been back on the job for about one month, following an absence of over
two years. Another candidate with more recent experience was selected to
fill in as the Infrastructure Superintendent for the two days in question.
With respect to issues (2) and (3), the record indicates that complainant
was absent from work from October 1994 until March 1997. Complainant was
in leave or AWOL status from October 1994 until he was removed from
federal service on February 27, 1995. The complainant's removal was
mitigated to a suspension by the Merit Systems Protection Board and
complainant was reinstated on December 12, 1996. Complainant however,
did not return to work because he was in administrative, annual or sick
leave status until March 11, 1997.
The AJ found that with respect to issue (1), complainant failed to
establish a prima facie case of
retaliation in that he failed to offer any probative evidence to suggest
that he was aggrieved by the designation of another individual for this
temporary, two-day assignment. The AJ indicated that complainant failed
to show that he suffered any monetary loss or that his promotion potential
was harmed by the denial of the April 8-9, 1997, temporary assignment.
The AJ found that absent any evidence of the foregoing, complainant's
claimed harm was speculative and insufficient to create a triable issue
of fact.
With respect to issues (2) and (3), the AJ found that complainant failed
to establish a prima facie case of retaliation when the agency rated
him �Fully Successful� for the performance appraisal periods July 1,
1994 - June 30, 1995, July 1995 - June 30, 1996, and July 1, 1996 -
June 30, 1997. The AJ found that complainant offered no substantive
evidence to suggest that his performance during the subject rating periods
warranted a rating higher than �Fully Successful,� or alternatively,
that the agency was bound by policy or past practice to rate him higher
than �Fully Successful.<1>� Finally, the AJ found that the agency's
rating of complainant for the performance appraisal periods in question
were consistent with the cited personnel regulations.
On appeal, complainant maintains that he should have received �Superior�
appraisal ratings as he was wrongfully removed from his employment
by the agency. As such, he believes his prior rating should have
carried over. Complainant also maintains that he should have been
allowed to act since he had more experience than the person selected.
He contends the position could have lead to promotional opportunities.
ANALYSIS AND FINDINGS
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.
Upon review, the Commission finds that no genuine issue of material fact
exists, in that there is no dispute that complainant was absent from
work from October 1994 to March 1997; personnel regulations require
a supervisor to rate an employee who serves in an official position
for 90 days or more during a rating cycle; the regulations require
a performance rating of �Fully Successful� for employees on workers
compensation, leave without pay, or extended sick leave who have not
worked at least 90 calendar days during the current rating cycle;
complainant fits into this category and thus deserved a performance
rating of �Fully Successful.� With respect to not being permitted to
act as the Infrastructure Superintendent, the Commission agrees with
the agency that complainant failed to demonstrate how he was aggrieved
and thus no genuine issue of material fact exists.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
arguments on appeal, the agency's response, and arguments and evidence
not specifically discussed in this decision, the Commission AFFIRMS the
agency's final order.
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
______12-13-01_________________
Date
1 The AJ noted that personnel regulations
clearly identify limited instances when an employee's last rating
of record should be extended for one cycle, i.e., when an employee on
long-term full-time training, intergovernmental personnel act assignment
or military furlough has not worked 90 calendar days during the current
cycle.