01971294
10-08-1999
Bruce W. Durbin, Appellant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Bruce W. Durbin v. Department of the Treasury
01971294
October 8, 1999
Bruce W. Durbin, )
Appellant, )
) Appeal No. 01971294
v. ) Agency No. 95-4265
)
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
)
DECISION
INTRODUCTION
On November 21, 1996, Bruce W. Durbin (the appellant) timely filed an
appeal with the Equal Employment Opportunity Commission (the Commission)
from a final agency decision (FAD) dated November 1, 1996, concerning
his complaint 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.
The Commission hereby accepts the appeal in accordance with EEOC Order
No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly determined that
appellant had failed to prove that the agency discriminated against him
based on color and retaliation.
BACKGROUND
Appellant was employed by the agency as a GS-1811-13, Criminal
Investigator (Special Agent) with the U.S. Customs Service in Calexico,
California. He received his annual performance rating for the period
of June 1, 1994 through May 31, 1995, on June 27, 1995. He received
a rating of "Fully Successful,"<1> and was denied both a Quality Step
Increase (QSI) and a Sustained Superior Performance Award (SSPA).
Appellant instead received a Special Act Award (SAA), worth the same
monetary value as the SSPA ($750). Appellant's previous performance
evaluation, for the period ending May 31, 1994, had been "Outstanding."
In the Calexico office at the relevant period in time, there were five
other GS-13 Criminal Investigators, two of which were white and three of
which were Hispanic. The Calexico office was supervised by the Resident
Agent in Charge, El Centro (RAC), who was in turn supervised by the
Assistant Special Agent in Charge, West in San Diego (ASAC-West). The
entire region was under the direction of the Special Agent in Charge, West
(SAC-West), located in Long Beach. The SAC-West was responsible for the
supervision of the 25 Criminal Investigators on the West Coast, as well
as 14 other employees. In between the end of the ratings period in 1994
and the end of the ratings period in 1995, there was a change in personnel
in these management positions. As of July 1994, the RAC changed, and as
of March 1995, the ASAC-West and the SAC-West changed. The new ASAC-West
and SAC-West determined that the region as a whole had inappropriately
high performance appraisals, despite its overall level of performance.
This new management team believed as well that the performance standards
were written so that it was "virtually impossible" to exceed the "Fully
Successful" rating. Correspondingly, for the ratings period ending May
31, 1995, none of the 39 employees under SAC-West received a rating of
Outstanding, and of the 26 employees who had been rated for both the
1994 and 1995 periods, only one maintained their same rating of Excellent
and all the others went down by one level (appellant by two levels).
Appellant initiated EEO Counseling on June 27, 1995. He filed a formal
complaint on September 11, 1995, alleging discrimination on the bases
of color (white) and retaliation (prior EEO activity) when he received
a rating of "Fully Successful," and was denied both a QSI and an SSPA,
along with several other allegations. The agency accepted the above
listed allegations of the complaint for investigation and processing
and dismissed the others in appellant's complaint on procedural bases.
The appellant did not appeal the dismissal of those allegations.
At the conclusion of the investigation, the agency issued a copy of
its investigative report and notified appellant of his right to request
an administrative hearing. After appellant requested a final decision
without a hearing, the agency issued its FAD on November 1, 1996.
In its FAD, the agency found that, regarding the performance evaluation,
the appellant had established a prima facie case of color discrimination,
but had failed to establish a prima facie case based on reprisal.
In reference to the issue of not receiving an SSPA, the agency found that
appellant had not established a prima facie case based on either color
or reprisal. The agency articulated as its legitimate non-discriminatory
reasons for its actions several arguments. First, it stated that the
RAC, appellant's supervisor, was unable to provide specific examples
to the ASAC-West to justify how appellant had exceeded his performance
standards and why appellant deserved a rating of Excellent as opposed
to Fully Successful. Additionally, under the relevant management
directives, in order to obtain a QSI, an employee had to achieve a
performance rating of Outstanding, which appellant did not do. Likewise,
in order to qualify for an SSPA, an employee had to obtain a rating
of Outstanding or Excellent. Because appellant was rated as Fully
Successful, he did not qualify to receive either the QSI or the SSPA,
and he instead received an SAA. The FAD further stated that appellant
had failed to establish that the legitimate, nondiscriminatory reasons
articulated by the agency were a pretext for discrimination.
Following the agency's finding of no discrimination, appellant filed
this appeal.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For appellant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency
has met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that
the agency acted on the basis of a prohibited reason. St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993).
To establish a prima facie case of reprisal, an appellant must show that:
1) he was engaged in protected activity; 2) the alleged discriminating
officials were aware of the protected activity; 3) the appellant
was subsequently subjected to adverse treatment; and 4) the adverse
action followed the protected activity within such a period of time that
retaliatory motivation may be inferred. Hochstadt v. Worcester Foundation
for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.),
aff'd, 545 F.2d 222 (1st Cir. 1976); Manoharan v. Columbia University
College of Physicians and Surgeons, 842 F.2d 590, 593 (2d Cir. 1988);
Wrenn v. Gould, 808 F.2d 493, 500 (6th Cir. 1987); Frye v. Department
of Labor, EEOC Request No. 05940764 (December 15, 1994).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the
third step of the McDonnell Douglas analysis, the ultimate issue of
whether appellant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Here, in response to appellant's claims of discrimination, the agency
presented evidence that under the new management team in place as of
March 1995, the standards were going to be more stringently applied when
evaluating employees for their performance evaluations. Nearly every
employee under SAC-West went down a rating level compared to their
previous evaluation, regardless of their color, or their previous EEO
activity or lack thereof. Appellant's performance was found under the
application of the standards to qualify for a Fully Successful rating.
Given that the management directives dictated that only those who were
rated as Outstanding would receive a QSI and only those who received
a rating of Outstanding or Excellent would qualify for a SSPA, it
logically followed that appellant did not receive the QSI or SSPA based
on his performance evaluation. We find that the agency has articulated
legitimate, nondiscriminatory reasons for its actions.
Since the agency articulated legitimate, nondiscriminatory reasons
for its actions, the burden returns to the appellant to demonstrate
that the agency's articulated reason was a pretext for discrimination.
We find that appellant has failed to do so. Appellant had argued that
the following comment in his performance evaluation was evidence of
discrimination on the basis of color: "He is handicapped by not having
a working knowledge of the Spanish language." The statement in context
with the rest of the paragraph evidences what seems to be more of a
compliment:
"Gathers Facts: [Appellant] is skillful at identifying sources to be
used in investigations. He is able to use sources, through other SSA's
and the Operational Enforcement Officer (OEO) assigned to the office,
or sub-sources, to gather information to use in investigations, even
though he is handicapped by not having a working knowledge of the
Spanish language. His performance exceeds the fully successful level."
A similar statement was also made in the context of his skills at
Intelligence Gathering. Appellant's Spanish language ability, or lack
thereof, is not evidence of discrimination on the basis of color because
of a lack of a direct connection between a person's color and their
ability to speak a language other than their native tongue. There are
certainly many people who are appellant's same color who also speak
Spanish. Appellant also argued that he was the only employee to go down
two ratings levels, and that this can be attributed to his EEO activity.
We find, however, that appellant was not rated any lower than the majority
of the other employees under the direction of the new SAC-West. Also,
the new management team and their new philosophy regarding performance
standard ratings, and the fact that nearly all employees went down on
their performance evaluation, disproves appellant's contention that
his EEO activity motivated his supervisors to rate him lower than the
previous year. Therefore, the agency's determination that appellant
failed to establish that he was discriminated against was correct.
Accordingly, the decision of the agency was proper and is AFFIRMED.
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 (S0993)
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. 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. 8, 1999
______________ __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 The performance evaluation system provides for ratings of: 1)
Outstanding; 2) Excellent; 3) Fully Successful; 4) Marginal, and 5)
Unacceptable.