01995090
02-28-2002
Elida Palomo, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Elida Palomo v. Department of the Air Force
01995090
February 28, 2002
.
Elida Palomo,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01995090
Agency Nos. KH0F 96703; KH0F98281
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaints 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., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,<1>
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. For the following reasons, the Commission affirms the agency's
final decision.
The record reveals that during the relevant time, complainant was
employed as an Inventory Management Specialist (IMS) at the agency's
Kelly Air Force Base in Texas. Complainant sought EEO counseling and
subsequently filed formal complaints on January 10, 1997, and October
20, 1998, alleging that she was discriminated against on the bases of
race/national origin (Hispanic), sex (female), disability (diabetes and
job-related stress), age (D.O.B. 6/12/45), and reprisal for prior EEO
activity when:
on August 22, 1996, she received a �fully successful� rating for the
period of July 1, 1995, to June 30, 1996; and
on May 28, 1998, she received a �fully successful� rating for the rating
period April 1, 1997, to March 31, 1998
At the conclusion of the investigation, complainant was informed of
her 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 on any of her claimed bases. Moreover, the agency
concluded that complainant could not rebut the reasons proffered by the
agency as being a mask for discriminatory motive. On appeal, complainant
restates the facts to these and two other complaints, but makes no
relevant arguments.<2> The agency requests that we affirm its FAD.
The Commission concurs with the agency's determination that complainant
failed to establish a prima facie case of discrimination. Specifically,
we find that complainant did not offer any evidence that she was treated
differently than others not of her protected classes. The Commission
further finds that complainant failed to present evidence that more
likely than not, the agency's articulated reasons for its actions were a
pretext for discrimination. In reaching this conclusion, we note that
complainant merely opined that she should have been rated higher than
�fully successful,� but she does not demonstrate that the failure to do
so on the part of the agency was because of discriminatory animus.
Agency officials (S1 and S2) who rated complainant stated that she
failed to meet deadlines and schedules on occasion. Further, S1 and
S2 both stated that complainant met her performance expectations for
the ratings periods in question, but did not exceed them, or in any
way perform outstanding work. Complainant does not dispute that she
failed to meet deadlines or schedules, rather she argues that she had
a large workload and very little support. That argument does not belie
discriminatory animus on the part of complainant's supervisors.
Accordingly, 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
February 28, 2002
__________________
Date
1The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2 Complainant, in her brief, relays the facts of complaint numbers
KH0F98005 and KH0F97556. Neither of these are currently before the
Commission, thus we will not address the merits of the claims herein.