0120092696
10-20-2010
J. D. Jamar, Jr, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
J. D. Jamar, Jr,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120092696
Hearing No. 420-2007-00071X
Agency No. 8V0J06010F07
DECISION
Complainant filed an appeal from the Agency's April 6, 2009, final decision concerning his equal employment opportunity (EEO) complaint alleging 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Instructional Systems Specialist at the Agency's Keesler Air Force Base facility in Mississippi. Complainant was hired as an intern or trainee, in the Complainant's PALACE Acquire (PAQ) Program which provided Complainant with an entry-level position accompanied by three years of training with the Agency potentially leading to permanent employment. Report of Investigation (ROI) at 496. In April 2006, Complainant received a written evaluation of his performance for the rating period April 2005 through March 2006. With respect to the critical elements that Complainant was required to meet, Complainant was rated "does not meet" in three elements and "meets" in one element. Complainant rating overall was "N" defined as "[u]nacceptable: Rated "Does Not Meet Standards" on one or more critical elements." ROI at 119. Subsequently, Complainant did not successfully complete the PAQ program.1 Complainant filed an EEO complaint, dated August 2, 2006, alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), and color (black) when:
On April 27, 2006, Complainant received his 2006 Civilian Rating of Record that was lower than Complainant thought he deserved.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its decision, the Agency found that three agency officials were responsible for Complainant's performance evaluation and the rating Complainant received. S1 was Complainant's immediate supervisor. S2 was Complainant's second lever supervisor and the reviewing official for the evaluation. S3 was Complainant's supervisor during a detail that commenced in September 2005. In December 2005, S3 provided input to S1 for the written evaluation. Agency Decision, (Ag Decision) April 6, 2009, at 2.
The Agency found that Complainant established a prima facie case of discrimination on the basis of sex. E1, another PAQ trainee and Complainant's female co-worker, was rated "R" or acceptable in all critical elements for the same rating period by S1. E1 is a member of Complainant's racial and color groups. However, the Agency found that S1 articulated legitimate, non-discriminatory reasons for the rating that Complainant received, which Complainant failed to show were a pretext for discrimination. Id. at 4.
Specifically, the Agency found that Complainant believed that he did not receive adequate training to succeed in the PAQ program, that he was subjected to an environment intolerant of his mistakes, one in which his work was scrutinized while the work of others was not; that he was treated unfairly by S1, and that he was not told that his performance was unacceptable until he received his 2006 rating.
The Agency observed that witnesses confirmed that Complainant's training was similar to that received by other PAQ trainees, and that Complainant did not express his dissatisfaction with training until he received his rating. Id. at 11. Similarly, the Agency found evidence that Complainant's performance issues, (such as prioritizing work, correcting errors and his need to pay greater attention to detail) were brought to his attention by both S1 and S3 during the rating period and prior to his receipt of the evaluation. Significantly, the Agency found that Complainant did not present any evidence to corroborate his expressed belief that his race, color or sex motivated the Agency officials (S1, S2 or S3) responsible for his 2006 evaluation and rating. Id. 10, et seq.; 14.
The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
In the instant case we find that the evidence supports the Agency's final decision. We concur with the Agency that Complainant did not identify similarly situated employees, who, under the same or similar circumstances, outside of Complainant's protected racial, sex, and color groups, who were treated better than Complainant was treated. We note that S3 initially provided written and spoken comments to S1, in which S3 was critical of Complainant's performance. Ag Decsion at 12, 13. The record reveals by letter dated May 10, 2006, S3 sought to supplement her evaluation of Complainant's work by in part, placing greater responsibility for Complainant's performance issues upon herself. ROI at 30. S3 acknowledged that she did not establish performance expectations for Complainant as she should have during the time he was on her team. Id. at 31. We consider, however, that S1 stated that her observations of Complainant's performance issues were consistent with the feedback S1 received from S2 and S3 during the appraisal period. While S1 stated that she received S3's negative comments about Complainant's performance, S3's comments did not influence her rating. Rather, S1 states that Complainant's work product reflected problems similar to those S3 cited. Id. at 11. We concur with the Agency that the evidence does not establish that more likely than not Complainant's rating was influenced by his race, color or sex.
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency's final decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 tends 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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
October 20, 2010
__________________
Date
1 Documents contained in the record on appeal indicate that based upon his performance documented in the performance evaluation and rating at issue in the instant complaint, Complainant received a Notice of Proposed Removal, which removal became effective in October 2006.
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0120092696
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120092696