01a60703
05-12-2006
Jeffrey L. Edington, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Jeffrey L. Edington v. Department of the Interior
01A60703
May 12, 2006
.
Jeffrey L. Edington,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A60703
Agency No. WBR-05-026
DECISION
Complainant filed an appeal with this Commission from the September 19,
2005 agency decision finding no discrimination.
Complainant, a group manager, alleged that the agency discriminated
against him on the basis of reprisal for prior EEO activity when he
learned on January 4, 2005, that he would not receive an award or quality
step increase for 2004 in recognition of his efforts in supervising
his staff.
In its decision finding no discrimination, the agency concluded that
complainant established an inference of discrimination based on reprisal.
The agency noted that complainant participated in EEO activity as
recently as August 2004, his supervisors knew of complainant's prior
EEO activity, complainant was subjected to an adverse action when he
did not receive a monetary award for 2004, and that there was a causal
nexus between the alleged discriminatory action which occurred in 2004,
and complainant's prior EEO activity in 2004.
The agency further concluded that the agency articulated,
nondiscriminatory reasons for its actions. Specifically, the agency
concluded that complainant did not receive an award based on performance
and conduct problems. In so concluding, the agency noted that complainant
was not supportive, undermined S-1 as a manager, was prone to outbursts
and disruptive behavior in the office, lacked a willingness to take
responsibility for management of the electrical equipment on a dredge
in which he had a meter installed that did not function properly,
and suffered from credibility problems with S-1 as his supervisor.
The agency also noted that complainant stated that he was unable to
identify the work his staff had completed and had allowed 51 percent of
his staff to make charges on an overhead account which made it impossible
to confirm the specific work which had been completed. The agency found
that complainant accused S-1 of micro-managing, made derogatory comments
to other managers about S-1's managerial decisions, and disparaged S-1
by calling him "stupid."
Regarding pretext, the agency stated that complainant failed to show
that S-1's decision not to give him a monetary award was based on a
retaliatory motive or intent and that the preponderance of evidence
establishes that performance and conduct problems were the reasons for
management's actions. The agency noted that other than complainant's
denial that he had conduct and performance problems, complainant failed
to produce evidence in support of the denial.
In his affidavit, complainant stated that he had once been the supervisor
of S-1 when complainant was the Deputy Division Chief of Facilities
Maintenance. He stated that S-1felt that complainant's previous position
affected S-1's authority and that S-1 believed that complainant might
undermine his authority. Complainant stated that in meetings with S-1 and
other Group Managers when complainant disagreed with S-1 on an issue,
it would upset S-1 and S-1 would call complainant in later and tell
complainant that he was not being supportive and that he did not like
complainant's conduct. Complainant stated that when S-1 had questions
about issues in the areas of responsibility of complainant's group that
S-1 would not talk to complainant but would call in the employees that
complainant supervised and discuss the issues with them.
Complainant further stated in his affidavit that S-1 did not invite him
to meetings that S-1 had with anyone pertaining to the dredge metering
device. Complainant also stated that after meeting with S-1 on January 4,
2005, concerning his not having received an award, S-1 talked to other
Group Managers in the Operations and Maintenance Office to ask about
the metering device on one of the dredges. Complainant stated that S-1
was making these inquiries to come up with proof that he was not getting
work done. He also stated that if S-1 was keeping performance records,
he did not know if he kept similar records on the other Group Managers
and that he felt that S-1 did not keep records until he found out that
complainant had filed an EEO complaint against him.
Complainant stated that of the 61 awards presented, 58 were presented
before performance evaluations were issued. He also stated that of the
65 employees in the Operations and Maintenance Office, only several did
not receive awards. Complainant stated that of the 65 employees, he had
recommended nine awards for his staff to S-1 and that all of the awards
for his staff was approved by S-1 for one or more individual awards.
Complainant stated that after transferring from under the supervision of
S-1 as the Structural Group Manager in August 2004, he was recognized by
his new manager for an on-the-spot award which he received in December
2004, and that prior to 2004, he had received awards.
Complainant stated that S-1 did not discuss any performance issues with
him when he asked him why he did not receive an award and that S-1 did
not discuss complainant's performance with complainant when he received
his performance evaluation in October 2004. Complainant also stated that
S-1 did not conduct an interim evaluation with him. Complainant stated
that after S-1 learned of the present complaint, S-1 compiled data on
complainant and began searching for reasons why complainant had not
received an award. Complainant also stated that the decision to install
the meter on the dredge was made by S-1 and other employees and that he
was not directly involved with the meter.
Complainant stated that the conversation that S-1 stated that he had had
with complainant about his non-supportiveness, undermining management,
outbursts being disruptive and credibility loss was held when S-1 gave
him a letter of warning on July 15, 2004. He further stated that it
was this letter which led to his filing an EEO complaint. Complainant
stated that the letter of warning was expunged from his file as a result
of a settlement. Complainant stated that other than this letter, S-1
had never had conversations with him regarding these issues.
A claim of disparate treatment is examined under the three-part
analysis first enunciated in McDonnell Douglas Corporation v. Green,
411 U.S. 792 (1973). For a complainant to prevail, complainant 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. McDonnell Douglas, 411 U.S. 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 actions. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). Once the agency has met its burden, 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. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993). In establishing pretext, complainant may show directly that a
discriminatory reason more likely motivated the agency or indirectly,
by showing that the agency's proffered explanation is unworthy of
credence. Although the burden of production, in other words, "going
forward," may shift, the burden of persuasion, by a preponderance of the
evidence, remains at all times on complainant. Burdine, 450 U.S. at 256.
As an initial matter, the Commission notes that, because this is an
appeal from an agency 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. See 29 C.F.R. � 1614.405(a).
We find that the agency articulated legitimate, nondiscriminatory reasons
for its actions in not giving complainant an award. Although the record
reveals that complainant's supervisor was aware of complainant's prior
EEO activity, the record also reveals that complainant's supervisor
had concerns about complainant's conduct and performance, including
complainant's handling of the repair to a dredge meter, complainant's
undermining of management, complainant's non-supportiveness toward
him as a supervisor, and complainant's failure to follow procedure
by not having his staff charge to specific work orders instead of to
overhead accounts. The record also discloses that two other group
managers did not receive awards from complainant's supervisor and that
none of the awards were given based on performance evaluations but were
job specific Star awards. Here, the agency proffered legitimate reasons
for its actions and complainant failed to show by a preponderance of the
evidence that the agency's real reasons for not giving him an award were
motivated by discriminatory animus. Accordingly, the agency's decision
finding no discrimination 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
May 12, 2006
__________________
Date