01a40266
04-06-2005
William A. Garner, Complainant, v. Peter B. Teets, Acting Secretary, Department of the Air Force, Agency.
William A. Garner v. Department of The Air Force
01A40266
April 6, 2005
.
William A. Garner,
Complainant,
v.
Peter B. Teets,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A40266
Agency No. 9R1M02177
Hearing No. 110-2003-08259X
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final order concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII).
Complainant was a GS-855-12 Electronic Engineer at the agency's
Avionic Management Directorate, at Robins Air Force Base, Warner
Robins, Georgia. Believing that he was a victim of discrimination,
complainant contacted the EEO office on June 5, 2002. Informal efforts to
resolve complainant's concerns were unsuccessful. On September 5, 2002,
complainant filed a formal complaint. Therein, complainant claimed that
he was discriminated against on the basis of race ( African- American)
when he was issued a rating of �excellent� with a composite score of
70 on his 2001-2002 performance evaluation on May 2002, resulting in
complainant receiving a 1% cash award.
Complainant provided three arguments in support of his request for a
higher rating in his performance evaluation:
His performance merited a higher rating than that given by the rating
official. Complainant asserted that his performance should have been
rated at 80 or �Superior.� Complainant stated that he should have been
rated at the highest �9" level in all rating areas, instead of the �7"s
and �8"s he received.
The rating official and other management officials did not inform
complainant that �he was performing less than a superior job, nor was he
given clear guidance on the required criteria for receiving a superior
performance appraisal rating.�
The existence of a lawsuit filed in Federal District Court wherein
Caucasian agency employees claimed that female and minority employees were
given preferential treatment in annual employee performance appraisals
in 2001.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ).
On July 23, 2003, the AJ issued a decision without a hearing, finding
no discrimination.
The AJ determined that the agency articulated a legitimate,
non-discriminatory reason for its rating in complainant's performance
evaluation. The AJ found that complainant's evaluation was based on
defined factors, that complainant did not dispute. The AJ also determined
that the agency's ratings did not show a pattern of racial exclusion since
both Caucasians and African-Americans were rated at the highest and lowest
levels. The AJ determined that an African-American comparative employee
received a higher rating of �superior.� The AJ noted that although
complainant acknowledged that the African-American employee was not a
true comparative because he had a different job title, both worked in the
same area, under the same supervisor, performing the same type of job,
and had the same rating official. The AJ also noted, that for the prior
year, complainant received the same evaluation under a different rating
official, and complainant did not claim that he was discriminated against.
Regarding complainant's assertion, that the rating official and other
agency officials did not inform complainant that he was not performing
at the superior level, the AJ determined that complainant failed
to provide any factual or legal argument that agency officials were
under an obligation to inform complainant that he was not performing
at the highest level. The AJ found that complainant received the same
performance level as the prior year and that the agency continued to
rate his performance at the same level. The AJ also found that when
complainant asked the rating official for an explanation of the evaluation
at issue, the rating official provided clear guidance on the required
criteria for receiving a superior rating, mainly, that he should take
on more responsibility similar to a project manager.
Regarding complainant's assertions of the existence of a discrimination
lawsuit filed in Federal District Court, the AJ determined that this
evidence was actually in detriment of complainant's instant EEO complaint
because the civil case is comprised of a claim that minority employees,
like complainant, were given preferential treatment in annual employee
performance appraisals in 2001.
On September 8, 2003,the agency issued a final order implementing the
AJ's decision.
The record in this case contains a statement by the rating official,
dated June 17, 2002. Therein, the rating official stated that complainant
received a �70" (Excellent) on his last appraisal because he performs
GS-12 work, and performs it well. The rating official stated that
complainant has not done things that would warrant an �81" (Superior)
rating, noting that complainant performs no leadership functions,
and while he performs tasks well, his work is not far and above that
of other GS-12 Engineers. The rating official noted that complainant
asserted that leadership should not be a factor. The rating official
stated that he disagreed; that he considered complainant's evaluation
to be �very good;� and that he offered to move complainant into some
leadership roles to move him closer to becoming a �Superior� performer.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is �genuine� if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-323 (1986); Oliver v. Digital
Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is
�material� if it has the potential to affect the outcome of a case.
If a case can only be resolved by weighing conflicting evidence, summary
judgment is not appropriate. In the context of an administrative
proceeding, an AJ may properly consider summary judgment only upon a
determination that the record has been adequately developed for summary
disposition.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the
Equal Employment Opportunity Commission to AFFIRM the agency's final
order implementing the AJ's finding of no discrimination, because
the AJ's issuance of a decision without a hearing was appropriate
and a preponderance of the record evidence does not establish that
discrimination occurred.
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
April 6, 2005
__________________
Date