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.