01970502
10-27-1999
Albert Morton, Appellant, v. William M. Daley, Secretary, Department of Commerce, Agency.
Albert Morton v. Department of Commerce
01970502
October 27, 1999
Albert Morton, )
Appellant, ) Appeal Nos. 01970502
) 01986930
v. ) 01991345
) Agency Nos. 95-51-0429
William M. Daley, ) 98-51-0178
Secretary, ) 98-51-02690
Department of Commerce, )
Agency. )
)
DECISION
The appellant timely initiated appeals from three final decisions of the
agency concerning his complaints of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. �621 et seq. The appeals are timely
(see 29 C.F.R. �1614.402), and are accepted under 29 C.F.R. �1614.401.
ISSUES PRESENTED
Whether, under complaint 95-51-0429, the appellant proved he was
discriminated against on the bases of his race and national origin
(African-American), age (born May 18, 1934) and reprisal (EEO activity)
when (1) he was continually excluded from meetings and decisions and
denied exposure and input into the office's decision making process,
(2) he was repeatedly denied advancement, training and mentoring, and
(3) whether a portion of the above allegations should be dismissed for
stating the same claim that was pending before or had been decided by
the agency or the Commission.<1>
Whether, under complaint numbers 98-51-0178 and 98-51-02690, the agency
properly dismissed portions of these complaints for (1) failure to discuss
allegations with an EEO counselor which were not like or related to the
counseled allegation, and (2) stating the same claim that was pending
before or had been decided by the agency or the Commission.
BACKGROUND
At the time of his complaints, the appellant was employed with the
agency's Office of the Secretary in Washington, D.C. He formerly worked
as an Audio-Visual Production Specialist, General Schedule (GS)-11.
After an Office of Personnel Management (OPM) desk audit, the appellant's
job was reclassified in 1993 to an Audio-Visual Equipment Operator,
Wage Grade (WG)-10.
Following an investigation of complaint 95-51-0429, the agency notified
the appellant of his right to request a hearing by an Administrative
Judge appointed by the Equal Employment Opportunity Commission, and
he requested a final agency decision. The agency then issued a final
decision finding no discrimination.
The agency dismissed portions of two complaints under agency docket
numbers 98-51-0178 and 98-51-02690 on procedural grounds.
ANALYSIS AND FINDINGS
Complaint 95-51-0429
Not advanced. Denied input and excluded from meetings and decisions
regarding the construction of new office space, including shelves and
a workbench.
While the agency addressed these matters on the merits, they are being
dismissed by the Commission because they state the same claims that are
pending before or have been decided by the agency or the Commission.
The allegation concerning denial of advancement refers to the appellant's
job being reclassified, which he viewed as a demotion. A co-worker
(Employee 1--white, born July 23, 1956) was a GS-9. Employee 1's
job was also reclassified to Audio-Visual Equipment Operator, WG-10,
resulting in a pay increase.
The office space of the audio-visual staff was located in a basement
level area. In 1994, the agency built new space for the staff on the
first floor. This included a large workbench, shelves, and two months
later, a small room for the appellant. The appellant alleged that he
was denied input and excluded from meetings regarding these matters.
He also alleged that equipment was stored in his office space without
his consultation.
The appellant filed the instant complaint in August 1995. The agency
issued a previous final decision on a previous complaint, No. 94-51-0367.
The decision reflects that therein the appellant alleged discrimination
on the bases of his race, national origin, age, physical disability, and
reprisal for EEO activity when, among other things, (1) the agency ordered
the above shelves and workbench for Employee 1 but not the construction of
an enclosed office for the appellant, (2) he was not consulted about the
shelves, (3) as a result of an OPM audit, his position was reclassified
and he was demoted from GS-11 to WG-10, whereas Employee 1 received a
promotion via reclassification. The February 1995 final agency decision
accepted allegations (1) and (2), and dismissed allegation (3) on the
grounds that it stated the same claim that was pending before or had been
decided by the agency or the Commission,<2> and was part of a pending
civil action. The Commission's information system does not show that
the appellant appealed this decision.
In July 1995, the agency issued a final decision finding no discrimination
on allegations (1) and (2), directly above.<3> The appellant filed
an appeal with this Commission, which was docketed as EEOC Appeal
No. 01956177. He then withdrew his appeal, explaining that he wished to
file a civil action. Thereafter, the Commission closed the appeal on the
grounds that the appellant requested it be withdrawn. The record does
not reflect whether the appellant filed the contemplated civil action.
Based on the foregoing, the above matters are dismissed pursuant to 29
C.F.R. �1614.107(a) for stating the same claim that is pending before
or has been decided by the agency or the Commission.
This decision now turns to allegations in the above complaint which
are being addressed on the merits.
Denied input and excluded from meetings and decisions regarding the
contracting and purchasing of audio and video equipment.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973) provides
the analytical framework for proving employment discrimination in
cases in which disparate treatment is alleged and no direct evidence
of discrimination has been presented. Although McDonnell Douglas is a
Title VII case, its analysis is also applicable to disparate treatment
cases brought under the ADEA. See Sutton v. Atlantic Richfield Co.,
646 F.2d 407, 411 (9th Cir. 1981). McDonnell Douglas requires the
appellant to first establish a prima facie case. If the appellant
succeeds, the agency's burden then is to articulate some legitimate,
nondiscriminatory reason for its action in order to rebut the prima facie
case of discrimination. Finally, the appellant has the opportunity
to show, by a preponderance of the evidence, that the agency's stated
reason is a pretext for discrimination. The ultimate burden of proof
that discrimination took place is on the appellant. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Under the
ADEA, the appellant must establish that age was a determining factor
in the agency's action against him. Hazen Paper Company v. Biggins,
507 U.S. 604, 610 (1993).
In 1993, the agency decided to modernize its audio and video equipment.
According to the appellant, there were over a dozen meetings between
his supervisor, the facilities specialist, and Employee 1 in 1995.
The equipment began arriving in August 1995. The appellant avers that
he was excluded from virtually all the meetings and the decision making
process on this matter.
Since the agency articulated legitimate, nondiscriminatory reasons for
the alleged discriminatory actions, as set forth below, we may proceed
directly to whether he demonstrated by a preponderance of the evidence
that the agency's reasons were merely pretexts to hide discrimination.
United States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-714 (1983).
The facilities specialist explained that Employee 1 was included in more
detailed meetings because of his expertise with audio equipment. This was
corroborated by the statement of the appellant's supervisor, who added
most of the equipment modernization was audio. The facilities specialist
averred that the appellant attended many general meetings regarding the
modernization, and his input was solicited and given. Referring to all
work meetings, she stated that many are impromptu, and the appellant
sometimes did not respond after being paged. The appellant's supervisor
stated that he did not believe Employee 1 met directly with any vendors,
as the purchase procedure did not include Employee 1, and to his knowledge
the appellant was not excluded from meetings with vendors.
Employee 1 stated, however, that he started working on the modernization
in 1993, and solicited vendors and arranged meetings between them and
the office. Employee 1 stated that he did not believe he attended any
substantive meetings without the appellant, but if this occurred it
was because the appellant was unavailable or the meetings were informal
and included vendors who were also friends. Employee 1 explained that
he knew many vendors from prior experience and jobs. He stated the
appellant attended many meetings regarding the purchase of equipment,
and provided input. According to Employee 1, at times the appellant
expressed dissatisfaction with equipment, but failed to provide a solution
or gave an inferior one.
On appeal, the appellant avers that he was excluded from all the
modernization meetings. He indicates he always wore his beeper.
He states that there was a meeting where two vendors were demonstrating a
camera which was attended by his supervisor and Employee 1. The appellant
states he only attended the meeting because he stumbled upon it, that
the camera was not appropriate, but was purchased. The appellant states
that subsequently, Employee 1 had the vendor demonstrate a camera and
the appellant did not attend. The appellant states the agency approved
the purchase of a second camera for Employee 1. The appellant states
it is not true that Employee 1 was more qualified than he in making
purchasing decisions, as evidenced by the purchase of an inappropriate
camera and Employee 1 taking training entitled "How to do Video Editing,"
something Employee 1 should have known.
The appellant's supervisor stated he approved the request of Employee
1 for a hand held camera.
The appellant has not met his burden of proving pretext or discrimination.
While the record shows that Employee 1 played a much larger role in
the modernization process than the appellant, it does not support the
appellant's contention that he was not given opportunities to have
input in the decision making process and was excluded from virtually
all meetings. Regarding Employee 1 meeting with vendors, the statement
of the supervisor appears inconsistent with the statements of Employee 1
and the appellant. However, this does not undermine the explanation of
the facilities administrator and the supervisor regarding why Employee
1 played a larger role, i.e., his expertise with audio equipment.
While the appellant questions Employee 1's qualifications, he has not
persuasively shown his assessment is correct nor, more relevantly, that
the assessments of the facilities administrator and the supervisor were
grounded in illegal bias.
Training
The appellant stated he was denied training classes, seminars, and
workshops to learn about new technology and methods. He stated that
in October 1995, Employee 1 was sent by their supervisor to another
agency to take training entitled "How to do Video Editing," something
which the appellant has known how to do for years.
The appellant's supervisor and the facilities administrator countered that
they never saw a request for training by the appellant. Employee 1 stated
that he sometimes takes advantage of lectures and seminars on topics in
his field on his own accord and not at the direction of his supervisors.
Employee 1 stated he has asked the appellant if he would like to attend,
and the appellant has accepted on several occasions. The appellant
has failed to prove he was disparately treated with regard to training,
or otherwise prove discrimination with regard to this matter.
Equipment stored in the appellant's new work space
The appellant contended that without his agreement, the agency
discriminatorily stored the modernization equipment in his new first
floor work space, leaving no space to work. The appellant's supervisor
explained that he authorized this storage pending a contract for the
installation of the equipment because there was no better place to
store it. Employee 1 stated that the appellant did not use his office
much before the equipment was stored there, and prior to the storage the
appellant installed several cabinets which took up much of the space in
the room, and they still go unused and remain empty.
On appeal, the appellant stated equipment was stored in his room for
a year, and then in September 1996, pursuant to a reorganization, the
room was demolished.
The demolishment is not at issue here. The appellant has failed to
prove that the agency's reason for storing equipment in his room was
discriminatory.
Complaint 98-51-0178, EEOC Appeal No. 01986930
In May 1998, the appellant filed an EEO complaint alleging that he
was discriminated against on the bases of race, age and reprisal
when (1) he was denied training opportunities and promotions, (2) his
performance evaluation was lowered, (3) he was placed in a hostile working
environment, (4) he was denied bonuses, (5) his work was scrutinized and
continually criticized, (6) employees are hostile, and (7) inferences
have been made suggesting he retire. The agency accepted allegation 2,
and dismissed the remaining allegations under 29 C.F.R. �1614.107(b)
on the grounds that the appellant did not discuss them with an EEO
counselor and they were not like or related to the counseled allegation.
The counselor's report indicates that allegation (2) concerned an
appraisal covering the period of October 1, 1996 through September
30, 1997.
On appeal, the appellant does not address the agency's reason for
dismissal. Rather, he argues the merits of his appraisal allegation and
references unrelated matters, such as his previous move from the GS to
WG series.<4>
We find, however, that allegation (5) is like and related to the counseled
allegation. Accordingly, the agency's decision to dismiss allegation
(5) is reversed. Its decision to dismiss allegations (1), (3), (4),
(6) and (7) is affirmed.
Complaint 98-51-02690, EEOC Appeal No. 01991345
The appellant filed an EEO complaint in July 1998 which the agency
defined as alleging discrimination on the bases of his race, age and
reprisal when (1) he was denied training opportunities and promotions,
(2) he received an unfavorable performance evaluation, and (3) he was
placed on a performance improvement plan (PIP).
The agency accepted allegations (1) and (3), and dismissed allegation
(2) on the grounds that it stated the same claim that was pending before
or had been decided by the agency or the Commission. It reasoned that
allegation (2) was identical to the allegation concerning an appraisal in
Complaint 98-51-0178. However, documentation submitted by the appellant
with instant Complaint 98-51-02690 reveals the instant complaint raised
a subsequent mid-year assessment or appraisal of the appellant's work at
a meeting on April 30, 1998 where the appellant was told his performance
was at the unacceptable level. As the appellant avers this incident
was part of a hostile work environment, it states a claim.
As allegation (2) is not identical to an allegation raised in complaint
98-51-0178, the agency's decision to dismiss allegation (2) is reversed.
CONCLUSION
Based upon a review of the record, and for the foregoing reasons, it is
the decision of the Commission to AFFIRM the agency's final decision on
Complaint 95-51-0429, albeit partly on alternative procedural grounds;
to MODIFY the agency's decision to dismiss a portion of Complaint
98-51-0178; and to REVERSE the agency's decision to dismiss a portion
of complaint 98-51-02690. The agency must comply with the order below.
ORDER
The agency is ORDERED to process allegation (5) of complaint 98-51-0178
and allegation (2) of complaint 98-51-02690 in accordance with 29
C.F.R. �1614.108.<5> The agency shall acknowledge to the appellant that
it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
of the appropriate rights within one hundred fifty (150) calendar days
of the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If the appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. ��1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. ��1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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 (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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. In the alternative, you may file
a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the
date you filed your complaint with the agency, or your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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:
Oct. 27, 1999
______________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1In this complaint, the appellant also alleged discrimination on the
basis of disability. On appeal, the appellant confirmed the EEO
investigator's determination that the appellant withdrew the basis of
disability discrimination.
2The final agency decision found that in February 1994, the appellant
filed complaint 94-51-0199 alleging discrimination when in July 1993,
his position was reclassified from the GS to WG series. In an unrelated
request for reconsideration in another case, the agency indicated that
due to its age, the final agency decision on complaint 94-51-0199 was
destroyed, and provided an unsigned electronic copy of this decision.
The copy recounted the above allegation, which was dismissed on
the grounds that the appellant failed to timely seek EEO counseling.
The Commission's computerized docket tracking system indicates that the
Commission closed the appellant's appeal from the final agency decision
on complaint 94-51-0199 on the grounds that he filed a civil action.
The closure occurred in December 1994 under EEOC Appeal No. 01943558.
3The final agency decision noted that the appellant received the previous
February 1995 final agency decision on the same complaint in February
1995, and did not appeal it. It also noted the enclosed office was built,
and found no discrimination with regard to this matter. It also found
the matter was moot.
4The appellant submitted appeal enclosures, but inadvertently did not
include his appeal argument. However, he submitted a copy of his EEOC
Appeal No. 01986930 argument with EEOC Appeal No. 01991345.
5Note that the agency is tracking the dismissed portion of complaint
98-51-0178 under 98-51-10085, and is tracking the dismissed portion of
complaint number 98-51-02690 under number 98-51-10160.