01990405
02-11-2000
Jasper B. Dodson, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Jasper B. Dodson v. Department of the Army
01990405
February 11, 2000
Jasper B. Dodson, )
Complainant, )
) Appeal No. 01976114, 01990405
v. ) Agency No. 9702H0020, 9706H0120
)
Louis Caldera, )
Secretary, )
Department of the Army, )
)
Agency. )
)
DECISION
Complainant, Jasper B. Dodson, filed timely appeals of two final agency
decisions concerning his complaints of unlawful employment discrimination
on the bases of race (African American, American Indian, Irish American),
national origin (Africa, Ireland, America), color (brown), 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> Complainant filed his
first complaint on December 4, 1996, claiming that he was discriminated
against when he received an unsuccessful performance evaluation.
He filed a second complaint on May 31, 1997, claiming discrimination when
he received a five-day suspension for failing to follow leave procedures.
We hereby consolidate the two appeals for this decision.<2> The appeal
is accepted in accordance with EEOC Order No. 960.001. For the following
reasons, the Commission AFFIRMS the final agency decisions.
Complaint dated December 4, 1996 (Agency Case No. 9702H0020)
The record reveals that during the relevant time, complainant was employed
as a Realty Specialist, GS-1170-09, at the agency's Memphis District Army
Corp of Engineers facility. Complainant claimed in his 1996 complaint
that he had received three evaluations rating him highly successful
just before his new supervisor rated him unsuccessful. He stated he
did not have notice that his performance was unsatisfactory and he had
not received proper training for his position in the seven years he had
been working in it.
The agency conceded that complainant proved a prima facie case of reprisal
stating that his supervisors were well aware that he had filed an EEO
complaint just prior to receiving the unsuccessful evaluation. Even so,
the agency concluded that it had legitimate non-discriminatory reasons for
issuing complainant the negative performance appraisal. On this point,
the record established that complainant's new supervisor, S1,(African
American, EEO activity not reported) had issued a mid-year review in
June 1996 rating his performance unsatisfactory and placing him on a
performance improvement plan. S1 stated that complainant's performance
was poor because his error rate on budget documents and other reports
for which he was responsible was greater than 10%. He also asserted
complainant had missed several suspense dates and he missed more than
two "slippage dates". There were other performance deficiencies cited
as well.
Complainant contended that S1 had not been able to train him on the
modern up-to-date software, and that the software was meant for higher
graded employees. He also contended that the reason he was targeted was
to conceal his knowledge of illegal promotions the supervisors had been
giving themselves. Lastly, complainant asserted that white employees'
performance standards had not been changed as his had.
Our review of the agency's final decision is based on a de novo review.
(64 Fed. Reg. 37659 (July 12, 1999) (to be codified at 29 C.F.R. �
1614.405)).
We note, preliminarily, that the investigator indicated complainant's
supporting documentation was not included in the record because it was
deemed irrelevant to the issues. Complainant also complained about
the investigator's failure to interview witnesses he had identified.
We do not condone the investigator's actions in failing to include
complainant's documentation without explanation or a description of
the excluded documents. Such an action gives rise to the appearance
of impropriety when the agency is charged with conducting a fair and
impartial investigation. (64 Fed. Reg. 37656, July 12, 1999 (to be
codified at 29 C.F.R.� 1614.108(b)). The same holds true for the agency's
failure to interview complainant's witnesses, although our criticism
is somewhat muted because the record contained a statement from one of
complainant's witnesses. From the appearance of the statement, however,
it was obtained by someone other than the investigator as it did not
contain the same statement of affirmation as other witness statements.
Notwithstanding the agency's lapses, complainant ultimately has the
burden of proving that discrimination occurred by a preponderance of
the evidence. In this regard, complainant failed to rebut the agency's
assertions that his performance was poor or to show that its reasons for
putting him on a performance improvement plan was pretextual. First,
complainant claimed he had never been adequately trained for his job which
presumably would have demonstrated why his performance was deficient.
The record established, however, that complainant received training
in 1993 on the Real Estate Management Information System (REMIS).
This training related directly to his duties as administrator of
REMIS. Furthermore, complainant was commended at the end of the training
for his knowledge of the system.
Second, complainant failed to refute persuasively the agency's claims that
his performance was inadequate. S1's negative evaluation of complainant's
performance consisted of specific complaints, namely, that he made too
many mistakes on his reports, missed too many deadlines and failed to
link offices with the REMIS system in a timely manner. Remarkably,
complainant failed to give his own account of his performance or to
provide any evidence tending to refute S1's complaints. Instead
complainant focused on vague allegations that S1 and other supervisors
may have engaged in illegal personnel practices as a motive for giving
him an unsatisfactory evaluation. Even if true, complainant's contentions
failed to establish a motive actionable under Title VII.
Finally, the comparison evidence demonstrated that one other employee had
filed EEO complaints but had not received an unsuccessful evaluation.
Therefore, based on the evidence in the record, we conclude that
S1's evaluation was not the result of discrimination or reprisal for
complainant's EEO activity.<3>
Complaint dated May 31, 1997 (Agency Case No. 9706H0120)
In complainant's 1997 complaint he claimed that a five day suspension
for failure to follow time and leave procedures was discrimination on the
basis of race (African American, American Indian, and Irish American),
color(brown), and reprisal for prior EEO activity. On this issue,
it was undisputed that complainant failed to submit a leave request in
advance for the day after Thanksgiving in November 1996. Complainant
claimed he tried unsuccessfully to leave a message on S1's answering
machine but it was broken . He also claimed he was unaware of the
chain of command in the absence of his immediate supervisor. Lastly,
complainant claimed there was a liberal leave policy in effect for the
day after Thanksgiving based on an e-mail sent to all employees by the
Commanding Officer.
The agency conceded that complainant established a prima facie case on
the basis of reprisal because it was aware complainant had engaged in
EEO activity at the time the suspension was issued. It also acknowledged
that a white employee, GS-7 Realty Specialist, had not requested leave
in advance but was not issued a suspension.
S1 claimed he had legitimate reasons for issuing complainant a suspension
unlike the white employee. He contended that this incident was
complainant's second violation, which occurred even after he was given
a written memo outlining proper leave procedures for him to follow.
A second violation warranted suspension under the agency's written
disciplinary policies. S1 also claimed complainant's failure to
submit leave requests in advance was part of a pattern of complainant's
refusal to accept him as his supervisor and that he knew well the
proper procedure for requesting leave. The agency's investigation
of the second incident revealed that complainant had not attempted to
contact any supervisor either before or on the day for which leave had
been taken and that the message machine was not broken because another
employee had left a message about her leave. Furthermore, contrary to
complainant's contention, there was no liberal leave in effect for the
day in question which would only be granted under certain circumstances
none of which applied in this instance.
Finally, the agency contended the white employee who was not suspended
for a leave violation had called and left a message with her supervisor
on the day leave was requested unlike complainant.
On this issue we find complainant's evidence unconvincing. We conclude
that complainant was not justified in his assessment that a liberal leave
policy was in effect for the day after Thanksgiving. According to the
agency's records, liberal leave is only available for emergency situations
such as inclement weather. There is no evidence indicating that any
type of emergency weather or otherwise took place on the day in question.
Complainant's contention that the Commanding Officer intended to grant
liberal leave is likewise unconvincing. The plain wording of the e-mail
message indicates the Commanding Officer granted four hours administrative
leave for the Wednesday afternoon before Thanksgiving day. This could not
be reasonably construed as granting liberal leave for an additional day.
We are also unpersuaded that complainant attempted to abide by the leave
procedures but was prevented from doing so by a broken answering machine.
Complainant failed to answer the agency's argument that another employee
successfully left a message on the same answering machine he would have
used. Consequently, complainant has failed to overcome the agency's
reasons for imposing disciplinary measures against him. He also failed
to establish his actions were substantially similar to those of a white
employee such that they should have received the same discipline.
Therefore, after a careful review of the record, based on the
analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979); Prewitt
v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981), and
Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318 (D. Mass. 1976), aff'd, 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to retaliation cases), the Commission finds
that complainant failed to show by a preponderance of the evidence that
he was discriminated against on the basis of race, national origin,
color or reprisal. Furthermore, complainant failed to demonstrate
that the agency's articulated reasons for its actions were a pretext
for discrimination.
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 Appeal No. 01976114 and in Appeal No. 01990405.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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:
February 11, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________ _______________________________
Date Equal Employment Assistant
1On 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.
2See 64 Fed. Reg. 37661 (to be codified at 29 C.F.R. �1614.606).
3The agency is cautioned, however, that the failure to develop an adequate
record such as occurred here on the issue of reprisal, could result in
sanctions in the appropriate circumstances. 29 C.F.R. � 1614.108(c)(3).