01a43001
09-16-2004
Curtis A. Phelps, Complainant, v. Stephen A. Perry, Administrator, General Services Administration, Agency.
Curtis A. Phelps v. General Services Administration
01A43001
September 16, 2004
.
Curtis A. Phelps,
Complainant,
v.
Stephen A. Perry,
Administrator,
General Services Administration,
Agency.
Appeal No. 01A43001
Agency No. PBS-09-OSA-0310/0315
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
The record reveals that during the relevant time, complainant was
employed as a Senior Property Manager, GS-1176-14, at the agency's
Property Management Office, Los Angeles Service Center (LASC), Region 9,
Public Buildings Service in Los Angeles, California. Believing that he
was discriminated against on the bases of race (African-American), age
(D.O.B. 6/8/44), and in reprisal for prior EEO activity, complainant
contacted the EEO office on September 18, 2002. Informal efforts to
resolve complainant's concerns were unsuccessful.
On December 28, 2002, complainant filed a formal complaint. Therein,
complainant claimed that he was subjected to a pattern of harassment
when his supervisor took the following actions:
1.a. from early March 2002 - April 30, 2002, his supervisor scrutinized
his handling of a situation with a member of his subordinate staff,
ultimately making the decision to terminate his employee, contrary to
his wishes;
1.b. from January 31, 2002 - July 3, 2002, his supervisor permitted
an agency employee's misallocation of construction funding and held
him responsible for the projected restroom renovation work not being
accomplished at the West L.A. (WLA) site during FY 2002;
1.c. a four e-mail message exchange that occurred in response to his
request for eight hours of sick leave on June 27, 2002;
1.d. his supervisor differentiated his handling of the BA54 funding
matter versus the IBAA matter identified on a June 6, 2002 listing.
Both dealt with actions/accounts being �in the red,;�however, WLA was
singled out in writing to all Senior Property Managers for having the
most actions in the red, while a similar action was not done for the
North L.A. office which had the most IBAAs in the red;
1.e. he was provided with his Annual Performance Evaluation, dated
October 18, 2002, in which he received an overall rating of �Successful.�
2.a. his computer was unduly monitored and he and [an agency employee]
shared �illegal or unauthorized access� to the Los Angeles Service Center
(LASC) computer network system as demonstrated by the release of an
e-mail from the desk of an LASC employee;
2.b. he was required to assess the work of a agency intern to determine
her acceptability for permanent employment without being informed that
the intern's conversion to permanent status was contingent upon something
complainant did not have � a vacant position in which to assign her;
2.c. his supervisor decided to send three younger Deputy Managers and one
Senior Property Manager to the National Buildings Manager's Conference
in New Orleans, LA, instead of sending three Senior Property Managers,
and complainant determined that this decision was a �mystery;�
2.d. he and two other Senior Property Managers have each served in the
capacity of Acting Director on only one occasion;
2.e. his supervisor accused him and his staff of creating confusion
during the location of an agency employee, after he and a National
Account Manager had worked out the details of her location to the
WLA Office without apprising him on the nature of her duties and the
environment needed to conduct her work; and
2.f. he and a Senior Property Manager were hired as Senior Property
Managers at the same time, but the other Senior Property Manager's
salary level was set at a higher rate of pay than his.
Complainant further alleged that beginning on August 23, 2002, and
continuing through October 29, 2002, and again, through July 27, 2003,
his immediate supervisor monitored his supervisory activities more
closely than his peers; and the immediate supervisor initiated or
permitted actions that served to undermine his supervisory authority
and disrupt or interfere with his office operations, as reflected in
the following claims:
3.a. his supervisor allegedly set him up for failure when he reassigned
two of his staff and/or contracted out work on August 23 and 26, 2002,
during a critical time of the year, without prior discussion with him;
3.b. on August 13, 2002, he was detailed, and on October 20, 2002,
he was reassigned, from the Senior Property Manager position in West
Los Angeles to an identical position in the North Los Angeles site.
Complainant alleged this was done to discredit his accomplishments in
West Los Angeles;
3.c. beginning on June 10 and continuing until October 19, 2002, he
was allegedly the only manager required to re-accomplish his action
plan and provide weekly updates relative to significant maintenance
deficiencies identified in the Management Analysis and Review System
(MARS) mid-May review;
3.d. a member of his staff was detailed on September 30, 2002, a critical
time of the year, without prior discussion with him;
3.e. his supervisor used his October 18, 2002 Employee Performance
Review and Rating to �besmirch� him based on the outcome of the mid-May
MARS review and to reflect that he had failed;
On June 2, and June 26, 2003, and on July 27, 2003, complainant amended
his formal complaint by adding the following four claims:
3.f. on December 3, 2002, his supervisor issued an Official Reprimand for
his alleged failure to follow instructions and his alleged inappropriate
behavior relating to his communication with a GSA customer employed by
the Social Security Administration;
3.g. on June 2 and July 23, 2003, his supervisor allegedly reassigned
essential staff between the West Los Angeles and North Los Angeles
Offices without consulting him;
3.h. his supervisor allegedly intervened in a project involving
the U.S. District Court facilities that resulted in an unwarranted
sole source procurement for services that were available in house.
Complainant claimed that this action had a negative impact on the
financial management of his organization; and
3.i. on June 26, 2003, his supervisor allegedly intervened in a fresh
air duct situation that possibly resulted in mismanagement of agency
funds over which he had oversight responsibility.
On February 24, 2003, the agency issued a decision wherein it accepted
for investigation claims 3.a.- i. However, the agency dismissed
claims 1.a. - d. pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely
EEO Counselor contact. Specifically, the agency concluded that the
alleged discriminatory events occurred from January 2002 to July 2002,
but that complainant did not initiate EEO contact until September 18,
2002, beyond the forty-five day limitation period. The agency dismissed
claim 1.e. pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state
a claim. Specifically, the agency determined that complainant did not
provide any evidence to suggest that he suffered a personal loss or harm
regarding a term, condition or privilege of his employment.
Further, the agency dismissed claims 2.a. - f. pursuant to 29 C.F.R. �
1614.107(a)(7), for failure to cooperate. Specifically, the agency
determined that in its January 15, 2003 letter, complainant was given an
opportunity to provide a response, but that a response was never sent
to the agency. The agency found that a response from complainant was
necessary because the record did not address specific dates of alleged
discriminatory acts.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. When
complainant did not respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant established a prima
face case of race, age and reprisal discrimination with regard to claims
3.a. - i. However, the agency determined that it had articulated
a legitimate reason for its employment actions. The agency further
determined that complainant failed to establish, by a preponderance
of the evidence, that its proffered reasons were pretexts for
discrimination.On appeal, complainant contends that the agency subjected
him to unlawful discrimination with respect to the issues alleged, and
that the investigation was inadequate and biased in favor of the agency.
In response, the agency requests that we affirm its FAD.
As a threshold matter, the Commission determines that on appeal,
complainant does not dispute the agency's dismissal of claims 1.a.-
e. and 2.a. - f., as his appellate arguments are confined exclusively
to the agency's final decision regarding claims 3.a. - i. Accordingly,
the Commission will confine its review to the issues addressed in the
agency decision finding no discrimination regarding claims 3.a. - i.
A claim of disparate treatment is examined, under the three-part
analysis originally enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). For complainant 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. Id. 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 action.
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).
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
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See 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).
The Commission finds that the agency articulated legitimate,
non-discriminatory reasons for its employment actions, which we determine
were not persuasively rebutted by complainant. The record in this
case contains an affidavit from complainant's Supervisor. Therein,
regarding claim 3.a., the Supervisor stated that because the Federal
Bureau Investigation (FBI), its largest customer, requested that a
Planner-Estimator (P&E) not be assigned to their work space, he reassigned
one P&E to the North Los Angeles (NLA) Office and the second P&E to the
West Los Angeles (WLA) Office. The Supervisor further stated �it made
good business sense to have a P&E assigned to that office that had no
restrictions in work assignments.� Furthermore, the Supervisor stated
that during the August 6, 2002 weekly senior manager's staff meeting,
in which complainant was in attendance, the issue of the reassignment
of the two P&Es was raised.
Regarding claim 3.b., the Supervisor stated that he detailed complainant
to the NLA Office �to provide him with greater access to the resources
of the LASC staff.� The Supervisor further stated that complainant
had �two major deficiencies prior to my decision to detail him to the
NLA Office that indicated that he would benefit from more support and
guidance from the service center staff.�
Regarding claim 3.c., the Supervisor stated that because the MARS
review for the WLA office noted two program areas were not operating in a
satisfactory manner, he requested a follow-up review of the unsatisfactory
program areas. The Supervisor further stated that he did not request
follow-up reviews for the NLA and Spring Street Offices because all of
their program areas were deemed to be operating in a satisfactory manner.
Furthermore, the Supervisor stated that because the action plan submitted
by the WLA office was inadequate and incomplete, he spoke with complainant
and requested a corrected action plan and weekly updates on the status
of addressing the deficiencies.
Regarding claim 3.d., the Supervisor stated that he detailed a Procurement
Technician in September 2002, at his request to the WLA office.
The Supervisor further stated that the Procurement Technician's request
to be reassigned was raised during the September 3, 2002 staff meeting.
The Supervisor also stated that a contract administrative support person
was hired for the NLA Office as a replacement; and that he reassigned a
management intern from the NLA Office to the North Spring Street Office
and reassigned an experienced Property Manager from the North Spring
Street Office to the NLA Office. The Supervisor stated that these
reassignments were made � to strengthen the management team at the North
LA Office.� Further, the Supervisor stated that complainant attended
the weekly senior manager's staff meetings when these reassignments were
raised; and that complainant �did not comment on or complain about the
proposed reassignments.�
Regarding claim 3.e., the Supervisor stated that he rated complainant's
performance as successful based on his detail to the NLA Office.
The Supervisor further stated �although he demonstrated numerous
deficiencies in his critical elements while assigned to the WLA Office,
I felt he showed sufficient improvement on his detail to warrant a
satisfactory rating.�
Regarding claim 3.f., the Supervisor stated that he issued complainant
an official reprimand for disregarding his instructions to reestablish
a working relationship with an customer employed by the Social Security
Administration (SSA). Specially, the Supervisor stated that on November
8, 2002, he received a voice message and an e-mail message from the SSA
customer stating that complainant's behavior was unprofessional and
unresponsive when she contacted him concerning a leaking roof at the
Huntington Park SSA. The Supervisor stated that during a November 12,
2002 discussion, he gave complainant an opportunity to respond to the
SSA customer's concerns. The Supervisor stated that complainant was
�argumentative�and called the SSA customer a �liar.� The Supervisor
stated that he explained the importance of reestablishing a positive
working relationship with the SSA customer and instructed complainant
to give the SSA customer a call and �give her an update on the status
of the roof leak/repair, apologize for any misunderstanding, and to
let her know that she could call him to give her his cell phone number
to insure that there would be no question about his availability and
immediate response in the future.� The Supervisor stated that later
in the morning of November 12, 2002, he received another call from
the SSA customer stating that complainant had called her and made
�accusatory and demanding statements towards her.� The Supervisor further
stated that the SSA customer characterized complainant's behavior �as
rude, unprofessional, and lacking in any customer service training.�
Furthermore, the Supervisor stated that the December 3, 2002 official
reprimand took three weeks to prepare; and that he was not aware that
complainant had filed an EEO complaint until he was contacted by an EEO
Counselor on December 2, 2002.
Regarding claim 3.g., the Supervisor stated that sometime late
February/early March 2003, a Procurement Technician assigned to the
NLA Office requested a temporary detail to San Francisco for personal
reasons. The Supervisor further stated that in preparation for the
Procurement Technician's detail, he asked complainant if his office needed
administrative support during the Procurement Technician's absence and
that complainant acknowledged they needed support. The Supervisor further
stated that he asked other LA offices if they could �spare someone from
their procurement staff,� and that only WLA Office volunteered, so he
arranged for a Purchasing Agent to be assigned to the NLA Office on a
temporary promotion beginning March 14, 2003. The Supervisor stated that
the Purchasing Agent's temporary promotion was extended on April 17, 2003,
as a result of the Procurement Technician's request to extend her detail
in San Francisco. Furthermore, the Supervisor stated that on May 7, 2003,
he met with complainant and a Supervisor Program Analyst to discuss the
possibility of the Purchasing Agent being permanently reassigned to the
NLA Office. The Supervisor stated that during the May 7, 2003 meeting,
complainant expressed concerns that the NLA Office would be allowed to
keep a contract administrative support person. The Supervisor stated
that while he permanently reassigned the Purchasing Agent to the NLA
Office, he allowed them to keep the contractor in the administrative
support position.
With respect to the July 23, 2003 reassignment, the Supervisor stated
that a named employee (hereinafter �E1") was reassigned to the WLA Office
at his request, which was part of a Reduction in Force (RIF) offer that
he received. The Supervisor stated that complainant was aware of E1's
pending RIF offer on May 13, 2003, at the weekly LASC staff meeting.
The Supervisor further stated that complainant made no concerns about
E1's reassignment. Further, the Supervisor stated that on June 2,
2003, he received a �confusing� email from complainant questioning
E1's reassignment. The Supervisor stated that on June 3, 2003, he
responded to complainant reminding him that he had been informed of E1's
reassignment and that he �had a full 24 hours to voice any concern before
the formal RIF offer was made to [E1].� The Supervisor stated that he
asked complainant to support E1's decision to relocate to the WLA Office.
Regarding claim 3.h., the Supervisor stated that he received a call from a
representative of the Department of Justice requesting a point of contact
for the Roybal Federal Building so they could discuss the possibility
of construction work in support of an upcoming trial. The Supervisor
further stated that he gave the name and number of the Deputy Property
Manager for the NLA Office. The Supervisor stated that he provided
the deputy's contact information because the deputy is responsible for
construction programs in all of the offices. The Supervisor stated that
he had no further involvement in the matter and that he never heard back
from the Department of Justice representative.
Regarding claim 3.i., the Supervisor stated that on June 26, 2003,
when he returned from a conference, he received an e-mail message
from complainant stating that he was aware of a situation that required
emergency repair. The Supervisor further stated that complainant replied
that his recommendations and assistance would be greatly appreciated.
The Supervisor stated that he became concerned when he received an e-mail
from complainant's deputy concerning an altercation with complainant.
The Supervisor stated that it appeared to him that this situation may
have been an attempt on complainant's part to follow through on a threat
to discredit his deputy. The Supervisor stated that the repair work was
ultimately completed through the maintenance contractor in the normal
fashion without incident.
Upon review, we find that complainant has not demonstrated that
the agency's articulated reasons for its actions were a pretext for
discrimination.
Finally, the Commission determines that complainant has not presented
evidence to support a harassment claim. Specifically, we determine that
complainant has not established that he was subjected to harassment so
severe and/or pervasive so as to alter the conditions of his employment.
Accordingly, the agency's finding of no discrimination regarding claims
3.a. to 3.i. was proper and is AFFIRMED.
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
September 16, 2004
__________________
Date