Horace McCann, Complainant,v.Hilda L. Solis, Secretary, Department of Labor, Agency.

Equal Employment Opportunity CommissionMay 28, 2009
0120091310 (E.E.O.C. May. 28, 2009)

0120091310

05-28-2009

Horace McCann, Complainant, v. Hilda L. Solis, Secretary, Department of Labor, Agency.


Horace McCann,

Complainant,

v.

Hilda L. Solis,

Secretary,

Department of Labor,

Agency.

Appeal No. 0120091310

Agency No. CRC0804068

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's December 19, 2008 final decision concerning

his equal employment opportunity (EEO) complaint alleging 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. Complainant alleged

that the agency discriminated against him on the basis of reprisal for

prior protected EEO activity under Title VII when: management did not

grant him a performance award in an amount equal to that given to other

GS-12 Hygienists.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of his right to request

a hearing before an EEOC Administrative Judge (AJ). When complainant

did not request a hearing within the time frame provided in 29 C.F.R. �

1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �

1614.110(b). The decision concluded that complainant failed to prove

that he was subjected to discrimination as alleged.

In its final decision, the agency found no discrimination. The agency

determined that management had cumulatively recited legitimate,

nondiscriminatory reasons for its actions. The Area Director (AD) stated

that cash awards/bonuses are based on the "current rating of record" and

the employee's rate of basic pay. The bonus determinations are made at

the Regional Office and not by him or complainant's immediate supervisor.

The AD explained that the standards have three critical elements and

the performance award has a direct correlation with the number of

elements met or exceeded (the more elements exceeded, the higher the

performance award (for the same basic pay). Complainant's award was

strictly based on his performance rating and basic pay. The AD commented

that, in light of complainant's performance, he received a very generous

performance rating and cash award. The AD explained that there are four

industrial hygienists in the area office that are similarly situated

to complainant. Two of them received higher performance ratings, and

two, including complainant, received Effective ratings. Thus, the two

with the higher ratings received greater cash awards than complainant.

The AD indicated that one of them performed more than twice the number of

inspections than complainant and the other conducted 25% more inspections,

including two significant cases, which are cases where penalties in

excess of $100,000 are issued. Both also identified a greater number

of violations per inspection. These two industrial hygienists received

awards of $3000 and upwards while complainant and the fourth industrial

hygienist received awards of $850 each.

Management also explained that the NCFLL agreement (agency's bargaining

agreement) notes that an employee receiving an Effective rating is not

required to receive a performance award but instead, "should be considered

for and may receive a performance award." The agreement also states

that the suggested percent of the employee's rate of basic pay is up

to 4%. There is no requirement that an employee receiving an Effective

rating must receive 4% of his basic rate of pay but only that 4% is the

maximum percentage of basic rate of pay. Complainant's award ($850 - 1%

of this basic rate) clearly falls within the parameters established by

the NCFLL Agreement. Furthermore, management asserted that complainant

was not singled out based on his prior EEO activity since a similarly

situated Industrial Hygienist with apparently no prior EEO activity

received the same rating and performance award.

As this is an appeal from a decision 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). See EEOC Management

Directive 110, Chapter 9, � VI.A. (November 9, 1999). (explaining that

the de novo standard of review "requires that the Commission examine

the record without regard to the factual and legal determinations of the

previous decision maker," and that EEOC "review the documents, statements,

and testimony of record, including any timely and relevant submissions

of the parties, and . . . issue its decision based on the Commission's

own assessment of the record and its interpretation of the law").

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, 120 S.Ct. 2097 (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).

On appeal, complainant questions, inter alia, the AD's testimony that

one of the higher-rated employees performed more than twice the number

of inspections than he and the other conducted 25% more inspections,

including two significant cases, which are cases where penalties in excess

of $100,000 are issued. Complainant asserts that this evidence is not

credible because it is subjective. However, as the agency asserted, the

AD's testimony regarding his evaluation of the employees is competent

evidence. Thus, the AD and other managers had objective standards by

which to measure employees' performance of investigations and cases,

and the AD provided unchallenged testimony that, when considered under

those standards, the performance of the two employees who received higher

ratings and bonuses was superior to complainant's. Further, beyond his

bare assertions, complainant has not produced evidence to show that the

agency's explanations are a pretext for discrimination.

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to affirm the agency's final decision

because the preponderance of the evidence of record does not establish

that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 77960,

Washington, DC 20013. 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 (S0408)

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 (Z1008)

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 from the Court

that the Court appoint an attorney to represent you and that the Court

also 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 with the Court 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

May 28, 2009

__________________

Date

2

0120091310

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

4

0120091310