01972221
04-19-2000
James Burleson, Jr., Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency
James Burleson, Jr. v. Department of the Treasury
01972221
April 19, 2000
James Burleson, Jr., )
Complainant, )
) Appeal No. 01972221
v. ) Agency Nos. 94-1061; 94-1111; 94-1266
) Hearing Nos. 100-95-7367X;
Lawrence H. Summers, ) 100-95-7368X;
Secretary, ) 100-96-7115X
Department of the Treasury, )
Agency )
)
DECISION
Complainant timely initiated an appeal from the agency's final decision
(FAD) concerning his equal employment opportunity (EEO) complaint of
unlawful employment discrimination on the bases of race (Black), sex
(male) and reprisal (prior EEO activity), in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1>
In his initial claim (C1), complainant claims he was discriminated
against on the bases of race and sex when: (1) on October 27, 1993, he
was subjected to a performance review by a co-worker, advised to increase
his productivity, relieved of his duties as a Contract Specialist (CS)
and advised by management that his work station would be moved; (2)
his October 27, 1993 request for leave was denied; (3) on November 15,
1993, he was harassed regarding his use of leave on November 10 and 12,
1993; and (4) on November 16, 1993, he received a counseling memorandum
regarding the scheduling and approval of leave. In his second claim
(C2), complainant claims he was discriminated against on the bases of
race, sex and retaliation when: (1) since October 27, 1993, the agency
has failed to provide him a position description; (2) on January 27,
1994, he became aware that a co-worker's request for a reassignment had
been granted; (3) on January 28, 1994, he was given performance elements
and standards not written in accordance with established regulations,
and his request for a meeting to discuss his duties was denied; (4) on
February 14, 1994, the agency rescinded its prior approval for him to
attend a training class. Finally, in his third claim (C3), complainant
claims that he was discriminated against on the bases of race, sex and
retaliation when: (1) on March 30, 1994, the agency presented him with
three performance appraisals covering a twelve (12) month period without
discussing them with him; (2) in July of 1994, management did not give
him a performance award; (3) from April of 1992 to April of 1994, the
agency reassigned him to new supervisors every three to six months;
and (4) from October of 1993 to July 12, 1994, he was the only employee
assigned contracts to close out. The appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
For the following reasons, the Commission AFFIRMS the agency's FAD.
The record reveals that during the relevant time, complainant was
employed as a GS-05 CS with the Procurement Services Division (PSD)
at the agency's Washington, D.C. Headquarters. Believing he was a
victim of discrimination on the above-stated bases, complainant sought
EEO counseling and, subsequently, filed formal complaints on January
3, 1994, May 2, 1994 and September 30, 1994. At the conclusion of
the investigation, complainant received a copy of the investigative
reports and requested a hearing before an EEOC Administrative Judge
(AJ). The AJ issued a Recommended Decision (RD) without a hearing,
finding no discrimination on any of complainant's claims.
Regarding the issues in C1 (Agency No. 94-1061), the AJ concluded that
complainant failed to establish a prima facie case of discrimination on
the bases of race or sex because he failed to demonstrate that he had
been aggrieved or that he suffered a direct personal harm or loss with
regard to a term, condition or privilege of employment for which there
was a remedy. The AJ found that there was no evidence that complainant
was subjected to a performance review by a co-worker, as the evidence
reflects that his evaluations were conducted by his first and second level
supervisors. The AJ further found that complainant was not relieved of
his CS duties as he had claimed, was given different contracts to work
on as part of his CS duties, and was moved pursuant to his request to
be closer to his supervisor. In addition, the AJ found that the leave
complainant requested was approved, but he was issued the counseling
memorandum as he had not followed the proper agency leave procedures.
As complainant failed to proffer evidence that he suffered any harm
or injury with respect to any of these agency actions, the AJ found
complainant failed to state a claim.
With respect to C2 (Agency No. 94-1111), the AJ considered the relevant
evidence and found that: (1) complainant was provided with a position
description when he began his job duties with the agency and his position
description did not change from that of a CS throughout his tenure; (2)
complainant was reassigned to a comparable position at his grade level
pursuant to an office reorganization and not a junior contract level
position; (3) he was provided his performance elements and standards,
similar to the standards provided to other employees; and (4) he was not
denied a meeting to discuss his duties and responsibilities, but rather
was told to go through the chain of command regarding such meetings.
The AJ found that complainant failed to show that he suffered any harm or
loss with respect to any of these agency actions and thus these claims
were dismissed for failure to state a claim. In addition, the AJ found
that the agency articulated a legitimate, nondiscriminatory reason for
refusing to allow complainant to attend the construction contracting
class at issue, namely, that complainant was not working on any contract
actions involving construction at the time and rather sent an employee to
the training who was involved with engineering and construction contracts.
The AJ found that complainant failed to demonstrate that it was more
likely than not that the agency's articulated reasons were a pretext
for discrimination.
In addition, regarding C3 (Agency No. 94-1266), the AJ found that
complainant was given three performance appraisals in 1994 as he was
supervised by three supervisors<2> that year and was evaluated by each,
but only one was a final appraisal of record. Further, the AJ found that
the record reflects that despite complainant's claim, other employees
were assigned contracts to close out as part of contract administration
work performed by all Contract Specialists. As such, the AJ found
that complainant failed to demonstrate that he suffered any harm or
injury regarding these actions, and thus the issues were dismissed
for failure to state a claim. Regarding the performance award, the AJ
found that complainant failed to demonstrate that there were any other
similarly situated employees not of his protected group that were treated
differently. Complainant's supervisors testified that performance awards
are discretionary on the part of management and his performance did not
merit an award, and the AJ found that complainant did not demonstrate
that his performance merited such an award. The AJ further noted
that several employees not in complainant's protected groups were also
not given performance awards. As such, the AJ found that complainant
failed to establish a prima facie case of discrimination with respect
to his failure to receive a performance award in 1994. The agency's FAD
implemented the AJ's RD in its entirety, and additionally modified the RD
by finding that complainant's allegations were not sufficiently severe
or pervasive to create harassment due to a hostile work environment.
Complainant contends on appeal that the AJ erred in failing to hold
a hearing and in finding that his claims were appropriate for summary
judgement. The agency requests that we affirm its FAD.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge will be upheld if supported by substantial evidence
in the record. Substantial evidence is defined as "such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion."
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,
477 (1951) (citation omitted). A finding that discriminatory intent
did not exist is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
Addressing complainant's contentions on appeal, we note that the correct
inquiry in determining whether an allegation is within the purview of
the EEO process is whether the complainant is an aggrieved employee
and whether s/he has alleged employment discrimination covered by the
EEO statutes. The Commission's Federal sector case precedent has long
defined an "aggrieved employee" as one who suffers a present harm or
loss with respect to a term, condition, or privilege of employment
for which there is a remedy. Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (Apr. 21, 1994); Trafficante v. Metropolitan
Life Insurance Co., 409 U.S. 205 (1972). Initially, we find that the AJ
erred in finding that complainant's failure to state multiple claims was
tantamount to a finding that complainant had failed to establish a prima
facie case of discrimination. If an AJ determines that a complainant has
failed to state a claim by failing to present evidence that s/he was an
aggrieved employee who suffered a present harm or loss with respect to a
term, condition or privilege of employment for which there is a remedy,
summary judgement in favor of the employer is appropriate rather than
a finding that complainant failed to establish a prima facie case of
discrimination. Trafficante, supra.
Notwithstanding the AJ's error in finding that complainant's failure to
state a claim was the equivalent to a finding of a failure to establish
a prima facie case, after a careful review of the record, the Commission
finds that the AJ's RD summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. The Commission finds
that the preponderance of the evidence supports the AJ's finding that
complainant failed to state a claim with regard to the issues alleged
in C1 (94-1061), as he failed to demonstrate that the actions by the
agency occurred as alleged or that he suffered any harm or injury with
respect to any of the actions. We also agree with the AJ's finding that
complainant failed to state a claim with regard to all of the issues
alleged in C2 (94-1111) except the claim regarding his inability to take
a construction contracting class. However, we agree with the AJ that
the agency articulated a legitimate, nondiscriminatory reason for not
allowing complainant to take the class, and he failed to demonstrate that
the agency's reasons were a pretext for discrimination or retaliation.
The Commission agrees with the AJ's finding that complainant failed to
state a claim regarding the issues in C3 (94-1266), except his claim
regarding the performance award, as he failed to show that he suffered
harm or injury with respect to any of the agency actions alleged.
In addition, we find that complainant failed to establish a prima facie
case of race or sex discrimination or reprisal regarding his failure to
receive a performance award in 1994, as he failed to demonstrate that
there were similarly situated employees not in his protected groups who
were treated differently. Even assuming, arguendo, that complainant
had established a prima facie case of discrimination regarding his
failure to receive a performance award, we find that the agency
articulated a legitimate, nondiscriminatory reason for its actions,
namely, that complainant's performance in 1994 did not merit an award.
Finally, the Commission agrees with the FAD's finding that complainant
failed to establish that the agency's conduct was sufficiently severe or
pervasive enough to create harassment based on a hostile work environment.
Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993).
Furthermore, we find that as the AJ correctly found that complainant
failed to state a claim regarding his contentions in C1-C3 except those
noted above, we agree with the AJ's finding that summary judgement was
appropriate and that a hearing was not necessary regarding complainant's
three claims. 29 C.F.R. �� 1614.107(a), 1614.109(e)(3); Anderson
v. Liberty Lobby, Inc., 466 U.S. 242, 255 (1986). We note that the RD
indicates that the AJ considered all of the evidence of record, including
complainant's objection and supporting exhibits, and concluded that no
genuine issue of material fact was presented. Our review of the record
confirms that complainant failed to show disputes concerning a material
fact sufficient to sustain his objection to summary judgment. Therefore,
we concur in the AJ's determination and find that summary judgment
was appropriate in this case. Therefore, after a careful review of
the record and evidence not specifically addressed in this decision,
we affirm the agency's FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (S1199)
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:
April 19, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 The FAD found that complainant had been supervised by two supervisors
during 1994 and received two interim and one final appraisal of record,
similar to other employees.