01A23924_r
10-31-2002
John T. Battle, Jr., Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
John T. Battle, Jr. v. Department of the Army
01A23924
October 31, 2002
.
John T. Battle, Jr.,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A23924
Agency No. ANBKFO0010A0650
Hearing
No. 130-A1-8281X
DECISION
Complainant was employed during the relevant period as a Quality Engineer,
DB-801-03, at the agency's Aviation and Missile Command, Redstone Arsenal,
Alabama. Complainant filed a formal EEO complaint dated September 21,
2000, in which he claimed that the agency discriminated against him
on the bases of his race (African-American), sex (male), age (55), and
in reprisal for his previous EEO activity under Title VII and the Age
Discrimination in Employment Act when he received a rating of �C� on his
performance appraisal for the period of July 1, 1999 to June 30, 2000.
The agency accepted the complaint and conducted an investigation.
According to the agency, complainant subsequently requested a hearing
before an EEOC Administrative Judge, but he failed to comply with the
Scheduling Order dated September 26, 2001. The agency stated that the
complaint was then returned for the issuance of a final decision.
The agency issued a decision dated June 6, 2002, wherein it determined
that complainant was not subjected to discrimination on any of
the alleged bases. The agency determined that complainant failed
to establish a prima facie case of race, sex, and age discrimination
because complainant failed to show that he was treated differently than
similarly situated individuals outside his protected groups. As for
complainant's reprisal claim, the agency determined that complainant
established a prima facie case of discrimination. The agency further
determined that the agency articulated legitimate, nondiscriminatory
reasons for its action, and that complainant did not establish that the
agency's reasons were a pretext for discrimination. It is from this
final action that complainant now appeals.
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case claiming
discrimination is a three-step process as set forth in McDonnell Douglas
Corporation 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 complainant to prevail, he must first establish a prima facie
case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133 (2000).
This order of analysis in discrimination cases, in which the first step
normally consists of determining the existence of a prima facie case,
need not be followed in all cases. Where the agency has articulated a
legitimate, nondiscriminatory reason for the personnel action at issue,
the factual inquiry can proceed directly to the third step of the
McDonnell Douglas analysis, the ultimate issue of whether complainant
has shown by a preponderance of the evidence that the agency's actions
were motivated by discrimination. United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 05900150 (June 28, 1990).
For purposes of analysis, we will assume, arguendo, that complainant
has established a prima facie case of race, sex, age, and reprisal
discrimination. Next, we shall consider whether the agency articulated
a legitimate, nondiscriminatory reason for its action. The Division
Chief stated that complainant refused to deal with the performance
objectives that involved developing a data base and preparing an
information paper for the first article/quality verification program
for spare parts.<1> Complainant's team leader stated that complainant
committed numerous errors in data collection. According to the Division
Chief, the requirement to provide quarterly reports under the second
performance objective was not ambiguous. The Division Chief stated that
complainant's performance was acceptable in most of the subelements,
which resulted in an overall �C� rating. According to the Division
Chief, complainant provided two performance input documents during the
rating period, but they were not sufficient to justify a higher rating.
We find that the agency articulated legitimate, nondiscriminatory reasons
for the overall performance rating of �C� issued to complainant.
Complainant claimed that the agency's reasons are pretextual because
he deserved higher scores in the job elements of technical competence,
working relationships, communications, resource management, and customer
relations. Complainant argued that higher scores were warranted in
light of the number of correct first article/quality verification waivers
that he completed, his good communication skills, the fact that he met
all of his deadlines, and because he provided anything that was asked
of him. According to complainant, the software he was required to use
prevented him from correcting the errors involving his data collection.
Complainant contended that providing quarterly reports was an ambiguous
component of his second performance objective. Complainant claimed
that there seems to be a trend toward hiring younger people and women,
and that management's goal is to terminate him.
Upon review of the record, we find that complainant has not established by
a preponderance of the evidence that the agency's stated reasons for his
performance rating were pretextual and intended to mask discriminatory
motivation. Complainant has not refuted the agency's position that
he committed numerous errors in data collection and he also has not
demonstrated that he was proficient in other areas of the two performance
objectives that he rejected. Complainant has not refuted the agency's
position that the software should not have prevented him from correcting
his database errors and that there was no ambiguity in the quarterly
reports component of the second performance objective. Complainant has
not provided specific evidence in support of his position that he should
have received a higher performance rating.
After a review of the record in its entirety, it is the decision of the
Equal Employment Opportunity Commission to AFFIRM the agency's final
action, because a preponderance of the record evidence does not establish
that discrimination occurred on any of the alleged bases.
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
October 31, 2002
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1Complainant's organization functioned under a system whereby all
engineers were rated against five job performance elements, and each of
the elements had a certain weight. The job elements were derived from
ten performance objectives. Complainant refused to sign his performance
objectives.