Agency.

Equal Employment Opportunity CommissionFeb 7, 2006
02A60002 (E.E.O.C. Feb. 7, 2006)

02A60002

02-07-2006

Agency.


Willie Berry Jr,

Grievant,

v.

Carlos M. Gutierrez,

Secretary,

Department of Commerce,

Agency.

Appeal No. 02A60002

Agency No. 1003WWB01

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the grievant's

appeal from an Arbitrator's November 10, 2005 decision in the above-

entitled matter. The grievant alleged that the agency discriminated

against him on the bases of race (African-American) and reprisal for prior

protected EEO activity under Title VII of the Civil Rights Act of 1964

when:

1. he was removed from the agency on September 30, 2003.

The appeal is accepted pursuant to 29 C.F.R. � 1614.401(d) and .405. For

the following reasons, the Commission affirms the findings of the

Arbitrator.

The grievant was employed as a Patent Examiner at the Technology Center,

Patent Examining Groups. Following his removal he filed a grievance

alleging the action was due to his race and EEO activity, and further, that

the action was inconsistent with the terms of the collective bargaining

agreement between the agency and the union as well as being inconsistent

with 5 U.S.C. Chapter 43. The matter went to arbitration and a hearing was

held. Thereafter, the Arbitrator issued a decision finding no

discrimination or reprisal, but overturning the removal decision because

grievant had not been given a reasonable opportunity to improve his

performance deficiencies.[1] Specifically, the Arbitrator found that the

agency said that grievant was terminated because of the poor quality of his

work and his failure to meet all three of the critical elements of his

performance requirements. The Arbitrator further found that grievant did

not show that the agency's articulated reason was a pretext for

discrimination or reprisal.

Although the initial inquiry in a discrimination case usually focuses on

whether the grievant has established a prima facie case, following this

order of analysis is unnecessary when the agency has articulated a

legitimate, nondiscriminatory reason for its actions. See Washington v.

Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In such

cases, the inquiry shifts from whether the grievant has established a prima

facie case to whether he has demonstrated by a preponderance of the

evidence that the agency's reasons for its actions merely were a pretext

for discrimination. Id.; see also United States Postal Service Board of

Governors v. Aikens, 460 U.S. 711, 714-717 (1983).

Various management witnesses testified that grievant's poor performance

during the Partial Signatory Program raised concerns. Furthemore

grievant's second-line supervisor (RMO1) stated in the notice of proposed

termination that she was unable to grant him Partial Signatory Authority

because he had made too many errors during his participation in the

Program. Grievant's supervisor (RMO2) said that following grievant's

participation in the Program, grievant continued to make numerous errors

and his work required numerous revisions, but that grievant failed to make

revisions in a timely manner or at all. RMO2 issued a notice of proposed

removal on July 14, 2003, noting that grievant had failed to meet all three

of the critical elements of his performance requirements and that he had

received oral warnings on August 28 and December 30, 2002. The management

official who upheld the removal action (RMO3) noted that grievant had

failed to improve his performance in any of the three critical elements

during the January to April 2003 improvement period.

In his appeal from the Arbitrator's decision, grievant argues that the

Arbitrator erred in his interpretation of EEO law. Specifically, grievant

argues that that the Arbitrator erred in finding that the fact that RMO2

was of the same race as grievant was evidence that RMO2 would not engage in

discrimination. Grievant points out that RMO2's race does not preclude her

from discriminating against grievant based on reprisal, as well as race.

Grievant further argues that the fact that another Patent Examiner (CW:

White) whose performance during the Partial Signatory Program was worse

than grievant's was not removed from the agency is proof of pretext and

discrimination.

The Commission agrees with the Arbitrator that grievant did not meet his

burden of establishing, by a preponderance of the evidence, that the

agency's reasons for his removal were a pretext for discrimination. While

we agree that RMO2's race does not preclude her from either retaliating or

discriminating against grievant based on his race, we note that the record

is devoid of any evidence of animus against grievant's race. Furthermore,

while CW was not terminated, there is no evidence that CW had as many other

performance deficiencies unrelated to the Partial Signatory Program as did

grievant. Therefore, after a careful review of the record, including

grievant's contentions on appeal, the agency's response, and arguments and

evidence not specifically addressed in this decision, we affirm the

Arbitrator's decision.

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

February 7, 2006

__________________

Date

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[1] As a result, grievant was reinstated to his position with backpay.