Rolf P. Speziale, Complainant,v.R.L. Brownlee, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionDec 22, 2003
01A25045 (E.E.O.C. Dec. 22, 2003)

01A25045

12-22-2003

Rolf P. Speziale, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.


Rolf P. Speziale v. Department of the Army

01A25045

December 22, 2003

.

Rolf P. Speziale,

Complainant,

v.

R.L. Brownlee,

Acting Secretary,

Department of the Army,

Agency.

Appeal No. 01A25045

Agency No. AHACFOO11OBO11O

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 appeal is accepted pursuant to

29 C.F.R. � 1614.405. For the following reasons, the Commission affirms

the agency's final decision.

The record reveals that during the relevant time, complainant was employed

as an Electronics Engineer, DB-03, within the Army Research Laboratory,

in Adelphi, Maryland. Complainant sought EEO counseling and subsequently

filed a formal complaint on October 15, 2001, alleging that he was

discriminated against and subjected to ongoing harassment on the basis

of national origin (Italian) and in reprisal for prior EEO activity when:

(1) in February 2001, his team leader (T1) had an intense outburst

regarding a routine task assignment that he performed;

after he wrote a memorandum concerning the outburst and submitted

it to significant parties, every aspect of his work was subjected to

microscopic scrutiny;

on April 4, 2001, he received a notification of deficient performance

during his mid-year evaluation;

on occasion, T1 made off-color comments about Italian immigrants and

their descendants;

on occasion, T1 expressed concern about his pay and incentives;

he was the only member of his team who was assigned programmatic duties;

on December 17, 2001, he received an unsatisfactory performance appraisal

for the period October 1, 2000 to September 30, 2001; and

on December 17, 2001, he received a Performance Improvement Plan (PIP),

effective December 17, 2001, through June 17, 2002<1>.

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 found that complainant failed to establish a prima

facie case of national origin discrimination. Specifically, the agency

found that management became aware of complainant's national origin in

October 2001, when complainant filed his complaint. The agency also

found that regarding claims (1) through (6), complainant failed to

establish a prima facie case of reprisal, because he did not show that

he participated in protected EEO activity prior to the instant complaint.

Regarding the harassment claims, the agency found that complainant failed

to establish that he was subjected to harassment that had the effect

of unreasonably interfering with his work environment, or created an

intimidating, hostile, or offensive work environment. Specifically,

regarding claim (1), the agency found that T1 denied that in February

2001, he had an intense outburst with complainant. T1 testified that the

conversation was normal and calm. The agency also found that complainant

stated that the alleged outburst did not impact his employment. Regarding

claim (2), the agency found that complainant was evaluated after having

been assigned to his job for one year, and that T1 and complainant's

supervisor (S1) discussed that complainant's performance was not up

to par. The agency also found that they scrutinized complainant's

work more closely, because he required more oversight based on lack

of technical competence. Regarding claim (3), the agency found that

complainant received a notification of deficient performance based on

management's assessment that complainant's performance was below par.

S1 testified that he was not seeing the progress in complainant's

performance that he had expected. The agency concluded that claim (4)

was without merit. The agency found that complainant testified that

he heard T1 make derogatory comments about women, Arabs and Chinese,

but not comments about Italians. Regarding claim (5), the agency found

that T1 testified that he has made comments about disparity in the

pay system between the engineers and physicists. Regarding claim (6),

the agency found that when complainant came on board, he was tasked to

perform programmatic work, because complainant performed this type of

work in his prior assignment. The agency further found that another

employee was also assigned 100% programmatic duties. Therefore, the

agency concluded that there is no evidence that those incidents affected

a term or condition of complainant's employment.

The agency found that complainant established a prima facie case of

reprisal regarding claims (7) and (8). The agency further found that the

agency articulated legitimate non-discriminatory reasons for its actions.

Specifically, the agency found that the unsatisfactory appraisal and

PIP occurred as a result of complainant's unsatisfactory performance.

The agency noted that complainant's attitude was negative, his analyses

were unsatisfactory, and his work products were not completed in a timely

manner. The agency found through T1 testimony that T1 was getting very

little productive input from complainant.

On appeal, among other things, complainant contends that he was target

of discrimination based on his Italian-American ethnicity. Complainant

further contends that the discrimination was directed at him by T1 and S1.

He also contends that the notification of deficient performance was a

direct result of this discrimination. He further contends that the final

unsatisfactory evaluation and subsequent PIP were a result of retaliation

for the instant complaint. The agency requests that we affirm its FAD.

ANALYSIS AND FINDINGS

Disparate Treatment claims

Claims (3), (7), and (8)

In general, claims alleging disparate treatment are examined under the

tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979).

A complainant 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 reason was a factor

in the adverse employment action. McDonnell Douglas Corp. v. Green, 411

U.S. at 802; Furnco Construction Corp v. Waters, 438 U.S. 567 (1978).

Next, the agency must articulate a legitimate, nondiscriminatory reason

for its action(s). Texas Department of Community Affairs v. Burdine,

450 U.S. 248 (1981). After the agency has offered the reason for its

action, the burden returns to the complainant to demonstrate, by a

preponderance of the evidence, that the agency's reason was pretextual,

that is, it was not the true reason or the action was influenced by

legally impermissible criteria. Burdine, 450 U.S. at 253; St. Mary's

Honor Center v. Hicks, 509 U.S. 502 (1993).

This 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

the complainant has shown by a preponderance of the evidence that the

agency's actions were motivated by discrimination. U.S. Postal Service

Bd. Of Governors v. Aikens, 460 U.S. 711, 713-714 (1983).

Assuming arguendo, that complainant established a prima facie case

of discrimination based on his national origin, and retaliation,

the Commission finds that the agency has articulated a legitimate,

nondiscriminatory reason for its actions. Specifically, the record

reveals that complainant had some deficiencies in his performance and that

he received notification in his mid-year evaluation. The record reveals

that since the mid-evaluation until the end of the rating period, T1 and

S1 met with complainant in a monthly basis to discuss his performance.

The record also reveals that complainant's performance did not improve

and that management rated him unsatisfactory. The record further

reveals that due to unsatisfactory performance complainant received

a PIP. The record shows that complainant's attitude was belligerent

and confrontational and he made poor use of his time.

The burden returns to complainant to establish that the agency's

explanation was a pretext for discrimination. Upon review, the Commission

finds that complainant has failed to do so. In reaching this conclusion,

we note that complainant merely argued that his unsatisfactory performance

and PIP was direct evidence of discrimination; however, complainant

failed to show that his performance was adequate and that he deserved

better ratings. We find that complainant failed to present evidence that

any of the agency's actions were motivated by discriminatory animus toward

complainant's national origin or in reprisal for prior EEO activity.

Harassment claims

Claims (1), (2), (4), (5), and (6)

Harassment is actionable only if the incidents to which complainant

has been subjected were �sufficiently severe or pervasive to alter the

conditions of [complainant's] employment and create and abusive working

environment.� Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993);

Wibstad v. United States Postal Service, EEOC Appeal No. 01972699

(Aug. 14, 1998) (citation omitted). To establish a prima facie case

of hostile environment harassment, a complainant must show that: (1)

he belongs to a statutorily protected class; (2) he was subjected to

harassment in the form of unwelcome verbal or physical conduct involving

the protected class; (3) the harassment complained of was based on the

statutorily protected class; and (4) the harassment affected a term or

condition of employment and/or had the purpose or effect of unreasonably

interfering with the work environment and/or creating an intimidating,

hostile, or offensive work environment. Humphrey v. United States Postal

Service, EEOC Appeal No. 01965238 (October16, 1998); 29 C.F.R. � 1604.11.

We conclude that complainant provides no evidence that these actions

were related to his national origin or were in reprisal for prior

protected activity.

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

December 22, 2003

__________________

Date

1On January 7, 2002 and February 5, 2002, complainant amended his

complaint and included claims (7) and (8).