01A25045
12-22-2003
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).