01A12021_r
11-26-2002
Matthew F. Montoya, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Matthew F. Montoya v. Department of the Navy
01A12021
November 26, 2002
.
Matthew F. Montoya,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A12021
Agency No. DON99-62204-037
DECISION
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.
The record reveals that during the relevant time, complainant
was employed as a Firefighter, GS-081-06, at the agency's Marine
Corps Logistics Base, Barstow, California. Complainant sought EEO
counseling and subsequently filed a formal complaint on May 17, 1999,
alleging that he was discriminated against in reprisal for prior EEO
activity when on March 9, 1999, he became aware that his supervisor had
changed his performance rating for the rating period January 1, 1998, to
December 31, 1998, from Level 5 "Outstanding" to Level 4 "Exceeds Fully
Successful." Complainant further claimed that on January 20, 1999, when
he signed his performance appraisal, the evaluation reflected Level 5 as
the rating and his supervisor changed it to Level 4 without counseling
him or informing him of the change.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency determined that complainant established a prima
facie case of reprisal concerning the change of his performance rating
from Level 5 "Outstanding" to Level 4 "Exceeds Fully Successful."
The agency, however, found that it had articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the agency
stated that complainant's first level Supervisor testified that it was
his standard practice to ask each employee to give himself the rating
he felt deserved. The Supervisor further testified that employees
who rated themselves above �Fully Successful,� were then requested to
annotate what they had done that was above the elements and standards
for their position. The Supervisor testified that prior to meeting
with employees, he made his own written narrative statement on each
element or standard; and then met with the Lead Firefighter for his
comments, because he, the Supervisor, did not directly work with all
his employees. The Supervisor testified that he informed complainant
that his recommendation was "Exceeds Fully Successful" on each element,
which would result in an overall rating of "Outstanding." However,
the Supervisor explained that subsequently he received complainant's
rating from Labor Relations with a request for justification for the
rating on complainant's Element 4 because the narrative and rating
sheet were inconsistent. At that time, he realized he made an error.
The Supervisor indicated that nothing was provided regarding Element 4
that merited a rating above �Fully Successful.� The Supervisor testified
that he then initialed the corrected rating sheet and saw no need for
further discussion with complainant because all his employees knew that
his recommendations were not final until approved by higher levels of
authority. The agency concluded that it was complainant's second level
Supervisor's determination that the first level Supervisor's mistake
was an honest one, and that he did not witness anything that would make
him think that complainant's prior EEO activity played a role in this
performance rating. Finally, the agency found that complainant failed
to present any evidence which demonstrated that the agency's articulated
reasons for its actions were a pretext for discrimination.
The established 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. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review, the Commission finds that the evidence supports a
determination that the agency articulated legitimate, non-discriminatory
reasons for its employment actions. Complainant has not demonstrated
that the agency's articulated reasons when his performance rating was
changed from "Outstanding" to "Exceeds Fully Successful" were a pretext
for discrimination.
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
November 26, 2002
__________________
Date