01981659
01-29-1999
Jayantilal P. Patel, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Jayantilal P. Patel v. Department of the Air Force
01981659
January 29, 1999
Jayantilal P. Patel, )
Appellant, )
) Appeal No. 01981659
v. ) Agency No. WE1M95218
)
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of color (unspecified), national origin (Asian & Indian), race
(Asian & Indian), reprisal (prior EEO activity), physical disability
(heart), and mental disability (stress), in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
and the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791, et seq.
Appellant alleges he was discriminated against when: (1) on May 19, 1995,
he received a copy of his position description, which he alleges does not
reflect his actual duties; (2) on May 19, 1995, he received a copy of his
performance plan, which he alleges does not reflect his actual duties; (3)
on March 29, 1995, he was reassigned to the F-15 Special Projects Office;
(4) in March of 1995, his new supervisor (S1) informed him he would have
to hand carry his timecard to payroll in order to get paid on March 31,
1995; (5) on May 19, 1995, he learned that his Standard Forms 50 and 52
regarding his reassignment were dated March 5, 1995; (6) on May 19, 1995,
he was advised that S1 was considering taking disciplinary action against
him;<1> and (7) on June 29, 1995, he received a disciplinary suspension
from duty for five days. The appeal is accepted in accordance with EEOC
Order No. 960.001. For the following reasons, the agency's decision is
AFFIRMED.
The record reveals that appellant, a GS-855-12 Electronics Engineer at
the agency's Wright-Patterson Air Force Base in Ohio, filed a formal EEO
complaint with the agency on July 20, 1995, alleging that the agency had
discriminated against him as referenced above. At the conclusion of the
investigation, appellant was informed of his right to request a hearing
before an Equal Employment Opportunity Commission Administrative Judge,
or have the agency issue a FAD. Having failed to respond to this notice,
the agency issued a FAD, finding no discrimination.
In its FAD, the agency did not address whether appellant established
prima facie cases, and instead noted, based on United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711 (1983), that the
agency articulated legitimate, nondiscriminatory reasons for its actions.
The FAD noted that appellant, along with other engineers, were relocated
to different groups within the agency as a result of downsizing, and that
paperwork processing delays resulted from the completion of this process.
Agency management officials consistently stated that position descriptions
and performance plans for engineers were generic and did not list every
job duty and responsibility specific to a particular project because the
task of updating such documents would be onerous. Agency management
officials consistently testified that it would not have been unusual
for S1 to tell appellant to deliver his time card to payroll when S1 did
not have a car to ensure timely delivery, and where others have been so
asked previously. Agency management officials also stated, consistently,
that the altercation between S1 and appellant justified the five day
suspension, and the agency presented evidence that other employees have
been suspended, for unspecified reasons, prior to appellant.
The agency then concluded that appellant failed to present evidence
regarding any of the above-referenced issues which would demonstrate
that the agency's articulated reasons were a pretext for discrimination
under any of appellant's alleged bases. On appeal, appellant contends,
among other things, that the investigation was inadequate and failed
to consider a number of facts or arguments. The agency stands on the
record and requests that we affirm its FAD.
After a careful review of the record, based on McDonnell Douglas v. Green,
411 U.S. 792 (1973), Prewitt v. United States Postal Service, 662 F.2d 292
(5th Cir. 1981), and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to retaliation cases),
the Commission finds that with respect to appellant's allegations of
disparate treatment, the FAD adequately set forth the relevant laws and
properly applied the facts to the relevant laws. We agree with the FAD
that appellant failed to present evidence that more likely than not,
the agency's articulated reasons for each of its actions were a pretext
for discrimination.
We note, however, that the FAD did not consider appellant's underlying
allegation that the above actions were taken in order to harass him
based on any, or all, of appellant's alleged bases. We find, however,
that none of the actions alleged by appellant, either individually or
as a whole, were sufficiently severe or pervasive so as to create a
hostile environment. See Wolf v. United States Postal Service, EEOC
Appeal No. 01961559 (July 23, 1998) (complainant failed to show how
changes in job responsibilities, personnel actions, and the like, were
objectively hostile, or were taken to harass her). Therefore, after a
careful review of the record, including appellant's contentions on appeal,
and arguments and evidence not specifically addressed in this decision,
we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
Jan 29, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 The Commission notes that the agency previously dismissed some of the
above-referenced issues on procedural grounds, and that we subsequently
reversed the agency's final decision. See Patel v. Department of the
Air Force, EEOC Appeal No. 01956572 (November 4, 1996). The agency then
accepted eight issues on December 17, 1996. While the FAD addressed only
seven issues, we note that the eighth issue, namely, that appellant
received a proposal to suspend on June 14, 1995, has merged with the
completed action, as set forth in issue (7). See Cadieux v. United States
Postal Service, EEOC Appeal No. 01952148 (March 14, 1996). However,
to the extent appellant alleges that the notice of proposed suspension
was further evidence of harassment, the Commission will consider this
additional issue in this decision.