01975854
03-17-1999
Julius Garcia Appellant, v. F. Whitten Peters Acting Secretary, Department of the Air Force, Agency.
Julius Garcia v. Department of the Air Force
01975854
March 17, 1999
Julius Garcia )
Appellant, )
) Appeal No. 01975854
v. )
) Agency No. SAN-96-AF-558E
F. Whitten Peters ) SAN-96-AF-239E
Acting Secretary, )
Department of the Air Force, ) Hearing No. 360-97-8050X
Agency. ) 360-96-8707X
______________________________)
DECISION
On July 21, 1997, Julius Garcia (appellant) timely appealed the final
decision of the Department of the Air Force (agency), dated July 11, 1997,
concluding he had not been discriminated against in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.
In his complaint, appellant alleges that he was discriminated on the
bases of national origin (Hispanic) and reprisal (prior EEO activity)
when: (1) in August, 1995, he was assigned a performance rating of
"Unacceptable;" and (2) on February 20, 1996, he was decertified as a
Training Instructor (Automotive) GS-09. The appeal is accepted by the
Commission in accordance with EEOC Order 960.001.
Appellant originally worked as an Automotive Instructor, WG-10,
in the agency Hobby Shop. Because of a job related injury, he was
given a light duty assignment in the Hobby Shop until another suitable
permanent position could be found for him. In 1994, appellant filed an
EEO complaint regarding a permanent position. As part of a settlement
of the EEO complaint, appellant was given the position of Training
Instructor (Automotive) GS-09 in the Automotive Training Flight on
January 8, 1995.
On September 12, 1995, appellant received an Overall Performance Rating of
"Unacceptable" and was placed on a performance improvement plan (PIP)
from September 12, 1995 through November 12, 1995. On November 13,
1995, appellant was evaluated as an instructor. However, the results
of the evaluation were not made official and considered "practice only."
On December 4, 1995, appellant was again evaluated as an instructor and
received an Overall Performance Rating of "Unacceptable." On December
13, 1995, appellant received his performance evaluation with an Overall
Performance Rating of "Fully Successful." Appellant received another
evaluation of his performance on February 22, 1996 and received another
Overall Rating of "Unacceptable." On February 27, 1996, appellant
received a Notice of Decertification and was removed from the classroom
as an instructor.
On April 30, 1996, appellant filed a formal EEO complaint with the
agency, alleging that the agency had discriminated against him as
referenced above. The agency accepted the complaint and conducted
an investigation. At the conclusion of the investigation, appellant
requested an administrative hearing before an Equal Employment Opportunity
Commission (EEOC) administrative judge (AJ).
A hearing took place on April 8, 1997 and on May 8, 1997, the AJ issued a
recommended decision of no discrimination. In that decision the AJ held
that appellant failed to present a prima facie case of discrimination
with respect to the first issue (ie. discriminatory performance rating in
August, 1995), because the record reflected that the rating official, RO1,
had no knowledge of appellant's protected prior activity. With respect
to the second issue (ie. discriminatory instructor decertification in
February, 1996) the AJ found that appellant did establish a prima facie
case of discrimination since the record reflects that the responsible
officials (RO) became aware of appellant's prior protected activity in
December, 1995.
The AJ also found that the agency articulated a credible legitimate,
non-discriminatory basis for its employment action. The agency, through
several witnesses, established that appellant's performance appraisal and
decertification were appropriate given appellant's consistent substandard
job performance. Finally, the AJ determined that appellant failed to
prove that the agency's rationale was not worthy of credence or that the
agency's employment action was motivated by improper national origin or
reprisal discrimination. Specifically, the AJ noted that the record
established that appellant repeatedly failed to meet the minimal job
performance requirements. In addition, the agency provided appellant
more opportunities to improve than what was normally provided to its
Instructors. For example, in addition to the ususal training provided
an instructor, appellant was also provided with a personal instructor
who was considered to be the best instructor in the section. The agency
provided appellant this specialized attention despite the fact that the
section was short of instructors. When appellant failed an evaluation,
on one occasion the agency chose not to make it official and gave
appellant another chance to improve. Despite the training assistance
provided to appellant, he failed to perform his instructing duties in
a satisfactory manner.
On July 11, 1997, the agency adopted the findings and conclusions of
the AJ and issued a final decision finding no discrimination. It is
from this decision that appellant now appeals.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission finds
that the AJ's recommended decision properly analyzed appellant's complaint
as a disparate treatment claim. See McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993);
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253-56 (1981).
The Commission concludes that, in all material respects, the AJ accurately
set forth the relevant facts and properly analyzed the case using the
appropriate regulations, policies, and laws. Based on the evidence of
record, the Commission discerns no basis to disturb the AJ's finding of
no discrimination. In reaching this decision, the Commission notes that
the credibility determinations of the AJ are entitled to deference due
to the AJ's first-hand knowledge, through personal observation, of the
demeanor and conduct of the witnesses at the hearing. Esquer v. United
States Postal Service, EEOC Request No. 05960096 (September 6, 1996);
Willis v. Department of the Treasury, EEOC Request No. 05900589 (July 26,
1990).
In addition, we find appellant's contentions on appeal to be without
merit. For example, appellant's claims that there were irregularities in
the training and rating process have not been proven and, even if true,
are not dispositive of discrimination. There is no evidence indicating
these alleged irregularities were motivated by national origin or reprisal
discrimination. Accordingly, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the agency's final decision finding no
discrimination.
STATEMENT OF RIGHTS -- ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
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 this
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 this 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 this 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 this 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:
March 17, 1999
_______________ _______________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations