01976872
08-26-1999
Thomas Martinez, III, Appellant, v. Carol M. Browner, Administrator, Environmental Protection Agency,
Thomas Martinez, III, )
Appellant, )
) Appeal No. 01976872
v. ) Agency No. 95-0009-HQ
)
Carol M. Browner, )
Administrator, )
Environmental Protection )
Agency, )
)
DECISION
Appellant timely initiated an appeal of a final agency decision
(FAD) concerning his Equal Employment Opportunity (EEO) complaint of
unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964, 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. Appellant alleges that he was discriminated
against on the bases of national origin (Hispanic), sex (male), and age
(over forty), when: (1) he received a memo from his immediate supervisor
addressing deficiencies in his performance; (2) receipt of his performance
evaluation for the rating period ending September 30, 1994 was delayed;
and (3) management did not provide him with adequate support staff.
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED.
The record reveals that during the relevant time, appellant was employed
as a Contracting Officer at the agency's Administrative Management Section
(AMS), Administrative Procurement Branch of the Office of Administration
and Resource Management. The record indicates that at this time, the
AMS workforce was relatively small; that staff frequently shifted in
and out of it; and that it was heavily burdened by its workload which
resulted in stress and racial polarization among the staff. Believing
he was discriminated against as referenced above, appellant sought EEO
counseling and subsequently filed a complaint on November 8, 1994. At the
conclusion of the investigation, appellant declined to request a hearing
before an EEOC Administrative Judge. Pursuant to 29 C.F.R. � 1614.110,
the agency issued a final decision.
The FAD concluded that appellant failed to establish a prima facie case
of discrimination on any basis. It is from this decision appellant now
appeals. On appeal, appellant argues against the FAD's findings while
the agency requests that we affirm its FAD.
Based on the standards set forth in McDonnell Douglas v. Green, 411
U.S. 792 (1973); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253-256 (1981) and Loeb v. Textron, 600 F.2d 1003 (1st
Cir. 1979), the Commission agrees with the agency that appellant
failed to establish a prima facie case of discrimination. As noted
above, the environment in the AMS was known to be �rife with racial
tension.� However, after a thorough review of the record, we conclude
that the racial tension, which appears to have generally resulted from
stress caused by the extraordinary workload, primarily concerned the
subordinate employees, and we discern no evidence from which to infer that
management's actions towards appellant were motivated by discriminatory
animus towards his national origin, gender or age.
Regarding the first allegation that appellant received a memo addressing
problems with his contract administration, we find that the agency
adequately documented the numerous deficiencies in appellant's
performance, including the fact that the Chief of the Management
Evaluation Staff filed an �alert� memo concerning how appellant's lack
of proficiency was adversely affecting her staff's ability to complete
their duties. Appellant presents no credible evidence that this memo
was undeserved; that another Contract Officer had performance problems
of this degree; or that his national origin, sex and age had anything
to do with the memo's issuance.
Regarding the second allegation, management readily admitted the
delay in appellant's receipt of his performance appraisal. However,
we agree with the agency that appellant presents no evidence as to how
this delay caused him harm, nor do we discern that he experienced any.
Regarding his third allegation that management failed to provide him with
adequate support staff, the record clearly establishes that the AMS had
a huge, time sensitive workload and not enough employees to service it.
There is no evidence that any of the Contract Officers in the AMS felt
that they had been assigned adequate support staff nor is there evidence
from which to infer that the inadequate assignment of support staff was
motivated by discriminatory animus.
Therefore, after a careful review of the record, including appellant'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 (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
August 26, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations