01A22739
03-10-2003
Doyle W. Ford, Complainant, v. John W. Snow, Secretary, Department of the Treasury, (U.S. Customs Service), Agency.
Doyle W. Ford v. Department of the Treasury
01A22739
March 10, 2003
.
Doyle W. Ford,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
(U.S. Customs Service),
Agency.
Appeal No. 01A22739
Agency No. 003231
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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
AFFIRMS the FAD.
The record reveals that during the relevant time, complainant was
employed as a Customs Inspector, GS-1890-11, at the West Great Lakes
Customs Management Center, with a post of duty at the Port of Detroit,
Michigan. Complainant sought EEO counseling and subsequently filed a
formal complaint on July 28, 2000, alleging that the agency discriminated
against him on the bases of his race (Black) and in reprisal for prior
EEO activity when:
An investigation was conducted in May 2000 concerning his training
application to the Customs Tuition Program (CTP);<1> and
He was not selected for a Supervisory Customs Inspector, GS-1890-12
position (Vacancy Announcement No. WGLAK/00-005SAB) in May 2000.
Subsequently, complainant requested numerous times to amend his complaint
to include several more claims. The agency accepted the following
additional claims:
He received a letter of reprimand resulting from the training
investigation; and
He was not selected for a Supervisory Customs Inspector, GS-1890-12
position (Vacancy Announcement No. WHLAK/00-017SAB) in October 2000,
and again in January 2001.
On July 12, 2001, the agency, while identifying the four issues listed
above as having been accepted for investigation, dismissed the following
claims as untimely:
He was not selected for a Trade Sensitive Inspector (TSI) position in
July 2000; and
He was subjected to various personnel actions going back to 1989.
The agency also dismissed the following claim as moot:
He was issued an April 2001 counseling letter.
In its FAD, the agency initially found that the dismissals of issues (5),
(6) and (7), were proper. As to (1), the FAD found that complainant
established a prima facie case of race discrimination, but no prima
facie case of retaliation, because there is no evidence of a causal
link between complainant's prior EEO activity and the agency's action.
The FAD found that the agency articulated a legitimate, nondiscriminatory
reason for its action; namely, it responded in a routine manner to
an allegation of misconduct. The FAD stated that complainant's CTP
application was disapproved by his second level supervisor (S2), but
complainant nevertheless, forwarded his application to Headquarters
for consideration, without including the disapproval memorandum.
This possible misconduct was the impetus for the investigation since
misconduct issues are always investigated. The FAD found that complainant
failed to establish that this reason was pretextual. In so finding,
the FAD noted that no similarly situated co-worker, not in complainant's
protected class, who had his application disapproved by a second level
supervisor, forwarded the application without the disapproval memorandum.
As to issue (2), the FAD found that complainant established a prima
facie case of race discrimination, however, no prima facie case of
retaliation. The FAD then found that the agency articulated a legitimate,
nondiscriminatory reason for its action; namely, the rating panel members
stated that they acted in accordance with their written instructions
and the crediting plan. Additionally, the personnel staffing specialist
stated that the promotion action was consistent with previous actions.
The FAD then found that complainant failed to establish that this reason
was pretextual.
As to issue (3), the FAD found that complainant established a prima
facie case of race discrimination. The FAD also found that, in view
of the closeness in time between complainant's prior EEO activity
and the action at issue, complainant established a prima facie case
of retaliation. The FAD then found that the agency articulated a
legitimate, nondiscriminatory reason for its action; namely, management
imposed the lowest level of discipline for what was considered a first
offense of disobeying a supervisor. Additionally, complainant's case
was distinguishable from the other applicants', in that he attempted
to get the approval of S2, but then in an act of deception, failed to
forward S2's disapproving memorandum with his package. The FAD found
that there was no evidence to indicate that this reason was pretext for
discrimination or retaliation.
As to the October 2000 position in issue (4), the FAD found that
complainant established a prima facie case of retaliation, but not race
discrimination, because one of the selectees was also Black. As to the
January 2001 position, the FAD found that complainant established a prima
facie case of retaliation and race discrimination. The FAD found that
the agency articulated a legitimate, nondiscriminatory reason for its
action; namely, the selecting official relied on the recommendations
of the regional manager, the on-site manager, and three long-term
supervisors, in making selections. None of the recommending officials
recommended complainant. The FAD found that there was no evidence to
indicate that this reason was pretext for discrimination or retaliation.
In so finding, the FAD noted that although complainant has more years
of experience than one of the selectees, this does not indicate that
complainant had the types of experience or level of performance that
the selecting officials were looking for. A recommending supervisor
mentioned complainant's deficiencies in interpersonal skills and the
Assistant Port Director (D1) mentioned complainant's CTP disapproval
and complainant's prior disciplinary actions.
On appeal, complainant, through his attorney, makes the following
contentions:
As to issue (1), the CTP application indicated that only the first-line
supervisor needed to sign the form. Moreover, other applications were
accepted with only first-level supervisor approval;
As to issue (2), the Mission Support Specialist (M1) should not have
rated complainant since she was biased against him on the CTP issue,
claiming he had received funds when that was false. Additionally,
all persons on the best qualified list were White, showing race
discrimination by the raters;
As to issue (3), only complainant was investigated and disciplined,
while other applicants who forwarded the CTP package without second-level
supervisor approval were not treated more favorably; and
As to issue (4), complainant had more experience than one of the
selectees; there is a lack of promotions of Black employees; D1 should
not have been one of the recommending officials because of his disparate
treatment toward complainant in the past; and another official should
not have been one of the recommending officials because of the biased
report of investigation that he submitted to the Port Director.
The agency requests that we affirm its final order.
Complainant does not challenge the dismissal of issues (5), (6), and
(7). Therefore, the instant decision will be limited to issues (1)
through (4). As this is an appeal from a FAD issued without a hearing,
pursuant to 29 C.F.R. � 1614.110(b), the agency's decision is subject
to de novo review by the Commission. 29 C.F.R. � 1614.405(a).
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
He must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502,
519 (1993); Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs, EEOC
Request No. 05950842 (November 13, 1997); Pavelka v. Department of the
Navy, EEOC Request No. 05950351 (December 14, 1995).
Assuming, arguendo, that complainant established a prima facie case
of discrimination on the alleged bases as to all issues, we find that
the agency has articulated legitimate, nondiscriminatory reasons for
its actions. As to issue (1), the impetus for conducting a routine
investigation was complainant's possible misconduct in deceptively
forwarding his application to Headquarters for consideration, without
attaching the disapproval memorandum to the application. As to (2),
the rating panel stated that they acted in accordance with their written
instructions and the crediting plan, and additionally, the promotion
action was consistent with previous actions. As to (3), management
imposed the lowest level of discipline for what was considered a
first offense of disobeying a supervisor, and complainant's conduct was
different from the other applicants in that he acted deceptively. As to
issue (4), none of the recommending officials recommended complainant,
and some of them cited complainant's alleged deficiencies or problems
with his prior conduct.
Despite complainant's challenges to the agency's articulated reasons,
complainant has not established, by a preponderance of the evidence, that
any of these reasons are pretexts for retaliation or discrimination based
on race. In so finding, we note as to the nonselections, that the agency
has broad discretion to set policies and carry out personnel decisions,
and should not be second-guessed by the reviewing authority absent
evidence of unlawful motivation. Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 259; Vanek v. Department of the Treasury,
EEOC Request No. 05940906 (January 16, 1997). Complainant may be able
to establish pretext with a showing that his qualifications were plainly
superior to those of the selectee. Wasser v. Department of Labor, EEOC
Request No. 05940058 (November 2, 1995); Bauer v. Bailar, 647 F.2d 1037,
1048 (10th Cir. 1981). However, complainant has not demonstrated that
his qualifications were plainly superior to those of any of the selectees.
To the extent that complainant contends that the incidents involving his
training application to the Customs Tuition Program constitute harassment,
we note that harassment of an employee that would not occur but for the
employee's protected activity under the anti-discrimination statutes is
unlawful, if it is sufficiently patterned or pervasive. McKinney v. Dole,
765 F.2d 1129, 1138-1139 (D.C. Cir. 1985). In order to prove a case
of harassment, the complainant must establish, by a preponderance of
the evidence, the existence of five elements: (1) he is a member of a
statutorily protected group; (2) he was subjected to harassment in the
form of unwelcome verbal or physical conduct involving the protected
group; (3) the harassment complained of was based on the statutorily
protected group; and (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering
with his work environment and/or creating an intimidating, hostile, or
offensive work environment; and (5) that there is a basis for imputing
liability to the employer. McLeod v. Social Security Administration,
EEOC Appeal No. 01963810 (August 5, 1999). In the instant case, the
evidence of record fails to establish that the harassment complained of
was based on complainant's race or prior EEO activity.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the agency's
final 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
March 10, 2003
__________________
Date
1 Pursuant to CTP policy, the agency pays the cost of tuition for
employees to attend college courses deemed in the interest of the agency.