Donald E. Bullock, Complainant,v.Dr. James G. Roche, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionDec 13, 2001
01A12018 (E.E.O.C. Dec. 13, 2001)

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.