___________________, Complainant,v.Pete Geren, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionFeb 6, 2009
0120083557_rev (E.E.O.C. Feb. 6, 2009)

0120083557_rev

02-06-2009

___________________, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.


___________________,

Complainant,

v.

Pete Geren,

Secretary,

Department of the Army,

Agency.

Appeal No. 0120083557

Hearing No. 550-2007-00089X

Agency No. ARCESAC06FEB00484

DECISION

On August 7, 2008, complainant filed an appeal from the agency's final

order, dated July 3, 2008, pertaining to 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).

For the following reasons, the Commission AFFIRMS the agency's final

order.

BACKGROUND

During the relevant time, complainant worked as a Regional Economist

for the Army Corp of Engineers, in the Sacramento District Planning

Division, at the Water Resources Branch in California. Soon after

receiving his promotion to the GS-12 Regional Economist position,

complainant sent Human Resources an e-mail requesting consideration

for the "recruitment and retentive incentives that were stated in the

job announcement . . . ." A few weeks later, on December 16, 2005,

complainant's first-line supervisor gave him a memo, signed by the

Division Chief, denying the request. According to the memo, his request

was denied because the job announcement did not reference incentives and

it was standard procedure to negotiate such pay benefits and incentives

prior to accepting a job offer.

Two weeks later, complainant received his fiscal year 2005 performance

appraisal. The evaluation rated him as "successful" and commented

the he was "cooperative, accepts work readily, is courteous and a good

listener. Has on occasion jumped to conclusions on issues with other

team members."

Believing that the denial of incentives and lesser performance appraisal

were based on his race and in reprisal for his prior EEO activity,

complainant contacted the EEO office. Informal efforts to resolve

complainant's concerns were unsuccessful. Subsequently, complainant

filed a formal complaint claiming he was discriminated against when:

(1) on December 16, 2006, he received a memo rejecting his request for

employment incentives from his second-line supervisor, Brandon Munch;

and,

(2) on December 30, 2005, he received a "successful" rating on his annual

performance evaluation, which also included a negative comment that he

has a tendency to jump to conclusions.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of his right to request

a hearing before an EEOC Administrative Judge (AJ). Complainant timely

requested a hearing and the AJ held a hearing on September 5, 2007 On

June 18, 2008, the AJ issued a decision finding no discrimination.

In her decision, the AJ first addressed the performance rating issue

(claim (2)). Even assuming that complainant had established a prima

facie case, the AJ concluded that the agency had provided a legitimate,

non-discriminatory reason for the rating. The second-line supervisor who

issued the evaluation acknowledged that he relied upon complainant's

immediate supervisor's opinion. Since complainant received both

"exceeds" and "met" ratings on the sub-elements, the overall "successful"

rating was appropriate. The AJ specifically noted that she found the

supervisor's detailed testimony, explaining his reasoning for each

element, to be highly credible. As to the comment, the supervisor

stated that it was included to explain why complainant was given a "met"

rating in the element regarding "Actively promote and foster a positive

professional and cooperative environment with your team members . . . ."

In addition to the examples provided by the supervisor, the AJ found that

complainant's own testimony supported the assessment that complainant

had a tendency to jump to conclusions.1 As to establishing pretext,

the AJ concluded that the complainant failed to meet his burden.

Complainant did not show that his rating were so unreasonable as to

constitute pretext for unlawful discrimination.

Regarding the recruitment incentive (claim (1)), the AJ found no evidence

that the request was denied due to complainant's protected bases.2 The

agency official testified that, after consulting with subordinates,

he believed that complainant was not eligible for the incentives.

As set forth in the rejection memo issued to complainant: the award

needed to be negotiated prior to the acceptance of the position, the job

announcement did not mention the benefit, and the agency official believed

that complainant was ineligible because he did not have documentation

indicating he was going to leave federal service. According to the

AJ, the agency official seemed "genuinely surprised" to learn, on

cross-examination, that the job announcement did reference incentives.

The AJ considered this to be "compelling evidence" that the official

did not "intentionally scheme" to deny complainant any incentive he was

entitled to, "much less that he did so because of race or in reprisal

. . . ."

On July 3, 2008, the agency issued a final order adopting the AJ's

decision. Complainant filed the instant appeal.

CONTENTIONS ON APPEAL

On appeal, complainant, through his attorney, submits a lengthy statement

requesting that we reverse the agency's decision.

Regarding claim (2), the incentive matter, complainant argues that the

testimony by agency officials was "inconsistent and contradictory."

The second-line supervisor implicated the first-line supervisor, who in

turn, argues complainant, pointed to an individual who was not called

to testify at the hearing. Further, complainant asserts that there

"are several facts which raise the inference of discrimination . . . ."

In support, complainant cites the fact that the reference to incentives

was indeed part of the job announcement. Further, complainant argues that

the Student Loan Repayment Program he requested, need not be negotiated

before a position is accepted. Lastly, complainant contends that agency

officials should have known that the second-line supervisor did not have

the authority to issue the denial.3 Complainant argues that these errors

bring into doubt the first-line supervisor's credibility, since he should

have the necessary knowledge, and raises an inference of discrimination.

The first-line supervisor's testimony, asserts complainant, illustrates

that he was "the driving force behind the denial of the incentives"

and the errors in their reasons should have led the AJ to conclude that

a legitimate reason was not proffered.

Particularly with the basis of reprisal, complainant asserts that the

second-line supervisor, whom he believes was responsible for the denial,

was one of the name officials in his prior EEO complaint. The prior

matter was settled, on August 1, 2005, less than four months after to

complainant learned his request for incentives was rejected.

With respect to claim (1), the 2005 appraisal, complainant argues that

the AJ disregarded important evidence. First, contends complainant,

his first-line supervisor failed to include many of his significant

accomplishments for the year. At the hearing, the supervisor did

not explain why he did not incorporate the achievements. This lack

of an explanation, contends complainant, "is a glaring example of how

[the first-line supervisor's] explanation . . . was a pretext to mask

discrimination and reprisal." Secondly, complainant asserts that his

ratings for the year before and after the 2005 rating were higher,

and that the first-line supervisor testified that he did not believe

complainant's performance had declined from 2004 to 2005. Complainant

believes that this should lead one to conclude that the 2005 evaluation

was unreasonably low and that the AJ should have found that the first-line

supervisor was motivated by discriminatory animus. Thirdly, complainant

believes that the unfavorable comment was unwarranted. He submits

his perspective on the examples provided at the hearing, and argues

that they do not "imply jumping to conclusions of any kind." Lastly,

the evaluation was not conducted in accordance with the TAPES guidance,

argues complainant, but rather with a "home-concocted formula" used by the

first-line supervisor. Complainant asserts that no explanation for this

was provided. While acknowledging that the first-line supervisor was much

more aware of complainant's performance, than the second-line supervisor,

the complainant challenged the AJ's belief that the "successful" rating

was supported by substantial evidence. Complainant argues that the

first-line supervisor made unfounded derogatory remarks, ignored agency

methodology for preparing evaluations, and failed to provide a credible

explanation for why he was given a lower rating when his performance

had not declined. According to complainant, the only evidence

submitted in support of the rating, was the "conclusory testimony"

of the first-line supervisor. In closing, complainant reiterates that

his first-line supervisor was one of the named officials in his prior

complaint, regarding an unfairly low performance appraisal for 2004.

The settlement required the first-line supervisor to sign a new version

of the 2004 performance appraisal, which complainant states "had to be

bitter pill for [the supervisor] to swallow."

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ will be upheld if supported by substantial evidence in the record.

Substantial evidence is defined as "such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion." Universal

Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted). A finding regarding whether or not discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held.

An AJ's credibility determination based on the demeanor of a witness or

on the tone of voice of a witness will be accepted unless documents or

other objective evidence so contradicts the testimony or the testimony so

lacks in credibility that a reasonable fact finder would not credit it.

See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).

To prevail in a disparate treatment claim such as this, complainant

must satisfy the three-part evidentiary scheme fashioned by the Supreme

Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He

must generally establish a prima facie case by demonstrating that

he was subjected to an adverse employment action under circumstances

that would support an inference of discrimination. Furnco Construction

Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be

dispensed with in this case, however, since the agency has articulated

legitimate and nondiscriminatory reasons for its conduct. See United

States Postal Service Board of Governors v. Aikens, 460 U.S. 711,

713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request

No. 05950842 (November 13, 1997). To ultimately prevail, complainant must

prove, by a preponderance of the evidence, that the agency's explanation

is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center

v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department

of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997);

Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December

14, 1995).

In the instant case, complainant asserts that his request for incentives

was rejected and that he received a lesser performance rating due to his

race and in reprisal for his prior EEO activity. While it is unclear

whether the instant record establishes a nexus between complainant's

protected classes, particularly his race, and the adverse actions,

in light of the agency's proffered legitimate reasons, we shall assume

that complainant has presented a prima facie case and proceed with our

analysis.

As noted above, with respect to the denial of complainant's request for

incentives (claim (1)), the agency's December 16, 20206 memo explained

to complainant that the job announcement did not reference incentives

and agency procedure established that such benefits and incentives be

negotiated prior to the acceptance of a job offer. The testimony during

the hearing revealed that the agency official who authorized the denial

relied upon the advice of subordinates. Further, during the hearing it

was established that the reasons cited were erroneous. A copy of the

announcement reflected that incentives and benefits were referenced. The

complainant argued that because the reasons provided were inaccurate, that

pretext was established. The AJ, however disagreed. Specifically, the AJ

noted in her decision, that the second-line supervisor seemed genuinely

surprised to learn of the mistakes. The Commission finds that while the

agency may have erred in the reasons cited for rejecting his request,

there is no evidence that the denial was related to complainant's race

or prior EEO activity. The AJ found that the testimony by the signing

official to be credible, and there is no indication of discriminatory

animus by the human resources employee he consulted.

Regarding the rating (claim (2)), the second-line supervisor again

admitted that he was not personally familiar with complainant's work and

instead relied upon a subordinate, complainant's first-line supervisor, in

obtaining the "successful" rating. Complainant argued that approximately

four months earlier the first-line supervisor was required to alter

complainant's 2004 rating, in compliance with a settlement agreement,

and therefore he was motivated by reprisal in issuing complainant a

"successful" rating for 2005. The AJ, however, found the first-line

supervisor's testimony to be credible, citing the detail he provided

in explaining why each particular rating was given for each element and

sub-element. In light of the detailed reasons expressed by his immediate

supervisor, and the specific details supporting his ratings for each

element, the Commission agrees that the agency has offered a legitimate,

non-discriminatory reason for complainant's "successful" rating.

While complainant has expressed his disagreement with the agency's

actions, and explained his perspective on the example cited by

agency officials, we do not find that he has met his burden of

establishing pretext. Consequently, we agree with the AJ's finding of

no discrimination.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, we hereby AFFIRM the

agency's decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 77960,

Washington, DC 20013. 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 (S0408)

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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

February 6, 2009

__________________

Date

1 Complainant testified that when he was asked to bring his copy of

appraisal input to a meeting he thought it meant the supervisor failed

to consider such input prior to preparing the evaluation.

2 The AJ observed that while the agency did offer to pay the initial,

Caucasian, selectee for the position at the top of the GS-12 scale,

it was clear that he was not similarly situated to complainant.

3 Complainant asserts that under the Student Loan Repayment Program, on

the South Pacific Division (SPD) District Commanders have the authority

to approve or deny the benefit.

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0120083557

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Office of Federal Operations

P.O. Box 77960

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