John T. Battle, Jr., Complainant,v.Thomas E. White, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionSep 16, 2002
01A13901 (E.E.O.C. Sep. 16, 2002)

01A13901

09-16-2002

John T. Battle, Jr., Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.


John T. Battle, Jr. v. Department of the Army

01A13901

September 16, 2002

.

John T. Battle, Jr.,

Complainant,

v.

Thomas E. White,

Secretary,

Department of the Army,

Agency.

Appeal No. 01A13901

Agency No. ANBKFO9910J0480

Hearing No. 130-A1-8028X

DECISION

INTRODUCTION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning his 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.; 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.

BACKGROUND

The record reveals that during the relevant time, complainant was

employed as a General Engineer, DB-801-3, at the agency's Aviation

and Missile Command, Redstone Arsenal, Alabama. Complainant sought EEO

counseling and subsequently filed a formal complaint on October 15, 1999,

alleging that he was discriminated against on the bases of race (Black),

age (D.O.B. 12/29/44), and reprisal for prior EEO activity when he was

rated �fully successful� on his performance appraisal for the period of

July 1, 1998, to June 30, 1999.

At the conclusion of the investigation, complainant was informed of

his right to request a hearing before an EEOC Administrative Judge

(AJ) or alternatively, to receive a final decision by the agency.

Complainant initially requested a hearing, however, when complainant

failed to comply with the AJ's Acknowledgment Order, the matter was

returned to the agency. Thereafter, the agency issued a final decision.

Under the agency's performance evaluation system, complainant and the

approximately twenty-three engineers working for the Division Chief (DC)

were to be rated using basically identical performance elements.<1>

Concerning performance objectives, complainant disagreed with the

proposed set of objectives. Therefore, DC prepared for complainant

Proposed Performance Objectives, which complainant did not sign. Prior to

complainant's rating, complainant submitted his documentation addressing

the objectives. DC completed the performance evaluation of complainant,

and rated complainant as �fully successful.�

DC testified that his knowledge of complainant's performance came from

his personal knowledge, performance reviews, input from complainant's

Team Leader (TL), and information provided by complainant. DC testified,

and complainant's Team Leader (TL) confirmed, that two of complainant's

major objectives were technical work to develop a statistical data base

and preparation of a quarterly report, neither of which complainant

accomplished.

In its FAD, the agency concluded that complainant failed to establish

a prima facie case of race and age discrimination because complainant

failed to show that he was treated less favorably than someone outside of

his protected group. As to complainant's reprisal allegation, the agency

found that complainant established a prima facie case of discrimination.

However, the FAD also determined that the agency articulated legitimate,

nondiscriminatory reasons for its action, and that complainant did

not otherwise establish that the agency's reasons for its actions were

a pretext for discrimination, or that sufficient evidence existed to

establish that discrimination occurred.

CONTENTIONS ON APPEAL

On appeal, complainant contends that he was not properly rated, and that

his rating score was totally subjective.

ANALYSIS AND FINDINGS

In the absence of direct evidence of discrimination, the allocation of

burdens and order of presentation of proof in a Title VII case alleging

discrimination is a three-step process as set forth in McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973), and its progeny.

See, Hochstadt v. Worcestor 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). Although McDonnell

Douglas is a Title VII case, its analysis is also applicable to disparate

treatment cases brought under the ADEA. See Sutton v. Atlantic Richfield

Co., 646 F.2d 407, 411 (9th Cir. 1981).

For purposes of analysis, we will assume, arguendo, that complainant

has established a prima facie case of race, age, and reprisal

discrimination. We now consider whether the agency articulated a

legitimate, nondiscriminatory reason for its actions. The agency

submitted that complainant did not accomplish two major objectives,

i.e., to develop a statistical data base and prepare a quarterly report.

This is a legitimate, nondiscriminatory reason for the agency's action.

Therefore, the burden returns to complainant to demonstrate that the

agency's reasons were a pretext for discrimination, that is, that the

agency's reasons were not true and that the agency was more likely

motivated by discriminatory reasons. Complainant submitted that it was

inconsistent for DC and TL to testify that he had failed to accomplish

major objectives, but still received a �fully successful� evaluation,

and therefor the true reason for the evaluation was discrimination.

There is insufficient evidence in the record to support complainant's

contention of discrimination in the issuance of his evaluation.

It is noted that although the process relies, in part, on subjective

evaluations, a clear attempt has been made by the agency to quantify those

judgments through the use of defined standards. The subjectivity of DC's

conclusions in evaluating complainant is, without more, an insufficient

basis on which to find discrimination. The complainant has not met his

burden in this regard. Complainant has not provided sufficient evidence

that would persuade us that the agency's articulated reasons for its

actions were a pretext for discrimination. Complainant has proffered

no persuasive evidence to show that he was entitled to a rating above

"Fully Successful."

CONCLUSION

Therefore, 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

September 16, 2002

__________________

Date

1 The complainant's organization operated under a �pay banding� system

which provided that all engineers were to be rated against five job

performance elements, and each of the elements had a certain weight.