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.