Atanacio Sambrano v. Department of the Air Force 01981891 April 10, 2000 Atanacio Sambrano, ) Complainant, ) ) Appeal No. 01981891 v. ) Agency No. YHML95009 ) F. Whitten Peters, ) Acting Secretary, ) Department of the Air Force, ) Agency. ) ____________________________________) DECISION Complainant timely initiated an appeal of a final agency decision (FAD) concerning his complaint of unlawful employment discrimination on the basis of age (50) in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., and on the bases of race (Asian/Pacific Islander), color (brown), national origin (Philippines), reprisal (prior EEO complaint), and harassment (non-sexual) in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.<1> Complainant alleges he was discriminated against on January 1, 1995, when his performance appraisal for the 1994-1995 rating period was written and signed by a Non-Commissioned Officer (NCO). The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. § 1614.405). For the following reasons, the Commission AFFIRMS the agency's decision. The record reveals that during the relevant time, complainant was employed as a Civil Engineer at the agency's Yokota Air Base in Japan. In his response letter,<2> complainant wrote that he had worked under various supervisors, and that he had never, in twenty-four years, been given the rating that he received from the NCO. During his federal career, he asserted that his appraisals had been written by military officers or civilian employees, and that he had never worked under an NCO. Complainant claimed that his treatment was degrading and insulting, and that he had never been informed that the NCO was his supervisor. He wrote that he was the only Engineer in the office, and that the NCO could not have supervised him because he was not an Engineer. The record also indicates that while working under a different supervisor, complainant received a "letter of reprimand" and a rating of "Unacceptable" for the 1993-1994 period. The record reflects that complainant subsequently filed an EEO complaint as a result of those actions. The NCO, Chief of Maintenance Engineering, stated that complainant was his subordinate during the rating period. He further stated that complainant's performance was adequate and that complainant was rated "Fully Successful" for that period. He noted that complainant's previous supervisor had rated him less than satisfactory for the previous rating period. The NCO further noted that he was not aware of complainant's previous unsatisfactory rating and accompanying EEO complaint until complainant briefed him on it. The NCO recalled that complainant expressed no objection to being supervised by him. In fact, he testified that complainant's time cards were signed by him, and that he also gave complainant daily work assignments and granted him leave. While noting that he was aware of complainant's age and race, the NCO declared that he and complainant got along well, and that complainant was never harassed. He further declared that complainant seemed happy to have received a fully successful rating, and that complainant never asked him for a higher rating. The Commander (complainant's second-line supervisor) stated that he had known complainant for less than a year. He further stated that he had received briefings on complainant's poor performance, appraisal and letter of reprimand. The Commander testified that complainant reported to the NCO when he became the Chief of Maintenance Engineering in 1994. He further testified that he was not aware of any harassment or prior EEO activity involving complainant. The Commander declared that complainant's color, race and age had no bearing on his decisions. Believing he was a victim of discrimination, complainant sought EEO counseling and subsequently filed a formal complaint in June 1995. The agency dismissed the claim here now on appeal, along with two others. However, while affirming the agency's dismissal of the two other claims, on January 3, 1997, the Office of Federal Operations (OFO) remanded the present claim to the agency for further investigation. 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, the agency issued a final decision on December 1, 1997. In its FAD, the agency concluded that complainant failed to participate in the investigation of his claims, and that whether complainant established a prima facie case on any of his alleged bases was no longer relevant. The agency further concluded that its officials articulated legitimate, nondiscriminatory reasons for its actions, namely, that the NCO stated that he was complainant's supervisor during the rating period in question, and that in addition to making daily work assignments, he also signed complainant's time card and approved his requests for leave. The agency asserted that complainant did not voice any objections at the time to these ordinary exercises of supervisory judgment and control. Further, the agency asserted that its Commander testified that complainant worked under the supervision of the NCO when he became the head of the maintenance engineering function. Finally, the FAD found that complainant did not establish that more likely than not, the agency's articulated reasons were a pretext to mask unlawful discrimination. ANALYSIS As an initial matter, complainant contends that after having received the investigative file containing notification of his right to a hearing or an immediate FAD, he immediately noticed that he had never received an investigative affidavit to complete as part of the investigation. However, the Commission finds that while complainant purportedly did not get an opportunity to submit an affidavit as part of the investigative process, complainant should have requested a hearing before an Administrative Judge as a means of supplementing and correcting the record. Moreover, on appeal, complainant has not proffered any additional evidence in support of his claim. In United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-14(1983), the Supreme Court held that, once a legitimate, nondiscriminatory reason for the actions has been established, the fact-finder could dispense with the prima facie inquiry and proceed to the ultimate stage of the analysis, i.e., whether the complainant has proven by preponderant evidence that the articulated reasons were a pretext for discrimination. The agency's NCO stated that he was complainant's supervisor during the rating period in question, and that in addition to making daily work assignments, he also signed complainant's time card and approved his requests for leave. The agency asserted that complainant did not voice any objections at the time to these ordinary exercises of supervisory judgment and control. Furthermore, the agency asserted that its Commander testified that complainant worked under the supervision of the NCO when he became the head of the maintenance engineering function. The Commission finds that the agency has articulated a legitimate, nondiscriminatory reason explaining its actions. Also, the Commission finds that complainant has failed to meet his burden of establishing, by a preponderance of the evidence, that the agency's reasons for its actions were a pretext masking discrimination. There is no credible evidence to demonstrate that the agency's actions in this situation were rooted in discriminatory or retaliatory animus under any of complainant's alleged bases. Therefore, after a careful review of the record, including complainant's contentions on appeal, and arguments and evidence not specifically addressed in this decision, we AFFIRM the agency's decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0300) 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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter referred to as 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 (S1199) 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: April 10, 2000 ____________________________ Date Carlton M. Hadden, Acting Director Office of Federal Operations CERTIFICATE OF MAILING For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days of mailing. I certify that the decision was mailed to complainant, complainant's representative (if applicable), and the agency on: _______________ __________________________ Date Equal Employment Assistant 1On November 9, 1999, revised regulations governing the EEOC's federal sector complaint process went into effect. These regulations apply to all Federal sector EEO complaints pending at any stage in the administrative process. Consequently, the Commission will apply the revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the present appeal. The regulations, as amended, may also be found at the Commission's website at www.eeoc.gov. 2April 11, 1997 response to agency's March 20th request for additional information concerning complainant's claims. The record indicates that the assigned investigator was unable to obtain an affidavit from complainant as part of the investigative record. In his Report of Investigation, the investigator stated that he mailed a blank affidavit with instructions to complainant's address of record, but that he never received a response. Therefore, complainant's contentions are based upon the evidence contained in the record.