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
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120083557