0120071536
09-21-2007
William Lawrence, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
William Lawrence,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120071536
Agency No. ARARL02DEC0004
Hearing No. 120200600020X
DECISION
On January 31, 2007, complainant filed an appeal from the agency's January
10, 2007, final order concerning his equal employment opportunity (EEO)
complaint alleging 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., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is deemed timely
and is accepted pursuant to 29 C.F.R. � 1614.405(a).1
On January 19, 2003, complainant filed an EEO complaint claiming
discrimination based on race (Asian), national origin (Pakistani),
and age (56, D.O.B. 04/12/46) when, on December 5, 2002, he received a
satisfactory rating of "62" on his evaluation (December 2001-September
2002) but did not receive an increase in pay.2 At the conclusion
of the investigation, complainant requested a hearing before an EEOC
Administrative Judge (AJ). The AJ assigned to the case determined that
the complaint did not warrant a hearing and issued a decision without
a hearing on October 18, 2006. The agency subsequently issued a final
order adopting the AJ's finding that complainant failed to prove that
he was subjected to discrimination as alleged.
At the time of events giving rise to this complaint, complainant worked as
a Mechanical Engineer at the agency's Research Laboratory in Adelphi, MD.
The facility used the agency's pay-for-performance plan, which required
an employee to achieve a certain score to merit an increase in pay for
the next year. The target score for any year was dependent on several
factors, including one's place in the pay band, since it became more
difficult to climb as one moved toward 100%. As of 2002, complainant was
near the top of Band 3, or 94.8% through the pay band and needed a higher
score than in previous years to receive an increase in pay for 2003.
His score of 62, satisfactory, was not sufficient to earn him a raise,
and he did not receive an increase in pay. Previously, he had received
scores of 71 or better from his former supervisor (Caucasian, American,
60's), who had retired.
As of December 2001, a new supervisor (Caucasian, American, 37) (S1)
supervised complainant, while his team leader (Caucasian, American,
54) (TL) remained the same. With regard to complainant's evaluation,
S1 stated that complainant's rating was based on his performance and
concluded that, "for his level, [complainant] does not exhibit the
appropriate level of technical insight; he needs to learn how to take
a problem, develop a technical approach, and analyze his results to
draw conclusions." S1 stated that complainant does not follow through to
develop the technical approach and analyze the results. Further, S1 noted
that the prior supervisor's comments in complainant's 2001 rating, tallied
with his, in that, both noted that complainant performs calculations but
does not contribute to resolution of the current projects. In addition,
S1 stated that other supervisors and managers supported his evaluation
of complainant's performance, indicating that one supervisor had asked
that complainant be removed from his team. Also, S1 stated that he
counseled complainant on two occasions during the last year but did not
consider that his performance was unsatisfactory. TL agreed with S1's
assessment of complainant and noted that he had given the same report
in the past to the former supervisor.3
The AJ found that summary judgment was appropriate, that the agency
articulated legitimate, nondiscriminatory reasons for complainant's
evaluation, i.e., complainant's performance merited a 62, satisfactory
rating, and complainant did not demonstrate pretext.4 The AJ noted that
complainant's prosecution of his claim did not show disparate treatment,
in that, he compared himself to an employee who received a less favourable
rating and not within the same job category. Moreover, the AJ held that
complainant failed to present evidence that he performed better than
his evaluation indicated or otherwise rebut the agency's explanation
for his evaluation. Also, the AJ found that complainant's accusations
that S1 and TL made discriminatory comments, assuming they were made,
were no more than stray remarks and presented without context. The AJ
also discounted complainant's argument that S1 misunderstood the nature
of his work and other similar remarks about S1.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, even if not addressed herein,
it is the decision of the Equal Employment Opportunity Commission to
affirm the agency's final decision, because the AJ(s issuance of a
decision without a hearing was appropriate,5 and the preponderance of
the evidence of record does not establish that discrimination occurred.
CONCLUSION
Accordingly, the agency's final order is AFFIRMED.
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
___9/21/07_______________
Date
1 Two briefs, similar in content, in support of this appeal, were filed:
one from complainant's address, and one from his attorney's address.
2 With the agreement of all parties, processing on this complaint was
suspended while complainant, a member of the military reserve, was
deployed overseas.
3 The previous years' evaluations of staff under the prior supervisor
ranked complainant 18th out of 19 employee reviews, and, when S1 reviewed
the same staff, complainant was also ranked 18th out of 19 employees.
4 Complainant's claim that S1 and TL disliked him, because he was in
the military reserves does not state a claim under the EEO laws.
5 In the context of an administrative proceeding, an AJ may properly
consider issuing a decision without a hearing only upon a determination
that the record has been adequately developed for summary disposition.
See Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11,
2003); Murphy v. Dept. of the Army, EEOC Appeal No. 01A04099 (July
11, 2003). Here, we find that the AJ appropriately issued a decision
without a hearing, as complainant failed to proffer sufficient evidence
to establish that a genuine issue of material fact exists such that a
hearing on the merits is warranted.
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0120071536
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120071536