01A34175
06-03-2004
Joseph Eubanks, Jr., Complainant, v. Donald L. Evans, Secretary, Department of Commerce, Agency.
Joseph Eubanks, Jr. v. Department of Commerce
01A34175
June 3, 2004
.
Joseph Eubanks, Jr.,
Complainant,
v.
Donald L. Evans,
Secretary,
Department of Commerce,
Agency.
Appeal No. 01A34175
Agency No. 00-63-02125D
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 agency's final decision.
The record reveals that complainant is a former Field Operations
Supervisor, at the Local Census Office #2119, Boston Regional Census
Center, located in Boston, Massachusetts. Complainant sought EEO
counseling and subsequently filed a formal complaint on July 18, 2000,
alleging that he was discriminated against and subjected to a hostile
work environment on the bases of race (Black), national origin (American),
and sex (male), when his employment was terminated on May 23, 2000.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge (AJ)
or alternatively, to receive a final decision by the agency. On August
28, 2001, complainant requested a hearing. On February 21, 2003, the AJ
issued complainant a �Show Cause Order,�<1> directing him to indicate his
intentions with respect to proceeding with his case. Complainant failed
to respond to the �Show Cause Order� and the AJ denied the hearing
request and remanded the case to the agency for issuance of a FAD.
In its FAD, the agency concluded that management articulated a legitimate,
nondiscriminatory reason for its action, namely, complainant's poor
performance. Specifically, the agency found that daily progress
reports showed that complainant's district was the least productive
of all the districts assigned to the Boston South Local Census Office
(LCO). The agency also found that complainant failed to adequately
train and supervise his Crew Leaders who, in turn, were responsible for
the performance and production of the Enumerators. The agency further
found that management discussed with complainant his deficiencies on
several occasions but that he did not improve his performance. Finally,
the agency found that complainant failed to establish a prima facie case
of harassment. Specifically, the agency found that the conduct complained
of was not so severe or pervasive to create a hostile work environment.
The agency concluded that there is no evidence that complainant's
supervisor made the remarks complainant alleged.
On appeal complainant contends, among other things, that he was terminated
because he questioned management's personnel decisions which he believed
were racially motivated. Complainant makes no contentions about the
AJ's decision to deny his hearing request. The agency requests that we
affirm its FAD.
ANALYSIS AND FINDINGS
Generally, claims of disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). Complainant must 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). If the
agency is successful, the burden reverts back to the complainant
to demonstrate by a preponderance of the evidence that the agency's
reasons were a pretext for discrimination. At all times, complainant
retains the burden of persuasion, and it is his obligation to show by a
preponderance of the evidence that the agency's reasons were not true
and that it acted on the basis of a prohibited discriminatory reason.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 715-16 (1983).
This established order of analysis in discrimination cases, in which
the first step normally consists of determining the existence of
a prima facie case, need not be followed in all cases. Where the
agency has articulated a legitimate, nondiscriminatory reason for the
personnel action at issue, the factual inquiry can proceed directly
to the third step of McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. at 713-14; Hernandez v. Department
of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson
v. Department of Health and Human Services, EEOC Request No. 05900467
(June 8, 1990).
In response to complainant's claim, agency officials explained that since
May 2000, they had problems with complainant's job performance and with
the poor performance of District 6, the district for which complainant
was responsible. Management further explained that they compared
the performance of District 6 to District 1, because the workload of
the two districts was similar. After a comparison, management found
that District 6 had completed only forty-one cases while District 1
had completed four-hundred fifteen cases. The agency asserted that
complainant had several deficiencies in his performance. Specifically,
the agency found that complainant failed to adequately supervise the
Crew Leaders in District 6 who were responsible for the Enumerators'
production. The agency also found that binders of work from District
6 were frequently lost and were not submitted for processing by Crew
Leaders. The record reveals that complainant was not meeting with his
Crew Leaders on a daily basis as he had been directed. The record also
reveals through the Office Manager's testimony that complainant always
defended the Crew Leaders within District 6 rather than actively taking
steps to emphasize the importance of not falling behind in achieving goals
established for District 6. The agency asserts that complainant failed
to keep tight control over his subordinate personnel and their work.
We thus conclude that the agency articulated legitimate, nondiscriminatory
reasons for terminating complainant.
Since the agency articulated a legitimate, nondiscriminatory reason
for its action, we move to the third step in the analysis. The burden
returns to complainant to establish that the agency's explanation was
a pretext for discrimination. Complainant must show that the agency's
action was more likely than not motivated by discrimination, that is,
that the action was influenced by legally impermissible criteria and
that its reasons for its action were not the true reasons. St Mary's
Honor Center v. Hicks, supra.
In an attempt to demonstrate pretext, complainant contended that he was
assigned to a district he was not familiar with; that other districts had
low numbers of cases; and that his district's performance was hampered
by a requirement that he hire college students who were not available
to work the hours needed. With regard to hiring college students, the
agency stated there was no such requirement. The only point that the
agency emphasized in recruiting and hiring personnel was that the staff
should live in the district in which they work. The agency also found
that it was up to complainant to hire and train the highest quality staff
possible. The record also reveals that other districts had similar number
of cases than complainant's district, and their performance was better.
We find that complainant has not refuted the agency's characterization of
his work, shown that the agency's reasons were untrue, or demonstrated
that his termination was motivated by race, national origin, or sex.
The record also reveals that two other individuals outside of
complainant's protected group were terminated for poor performance.
We find that the evidence of record is insufficient to establish pretext.
To establish a prima facie case of hostile work environment harassment,
complainant must show that: (1) he belongs to a statutorily protected
class; (2) he was subjected to harassment in the form of unwelcome verbal
or physical conduct involving the protected class; (3) the harassment
complained of was based on the statutorily protected class; and (4)
the harassment affected a term or condition of employment and/or had the
purpose or effect of unreasonably interfering with the work environment
and/or creating an intimidating, hostile, or offensive work environment.
Humphrey v. United States Postal Service, EEOC Appeal No. 01965238
(October 16, 1998). Complainant argued that the former Local Census
Officer Manager (OM) made racially derogatory comments during their
meetings together, including comments that people of color were poor
performers and lazy and that more White people needed to be hired in
order to get the job done. We find that complainant has not presented
sufficient probative evidence, to prove, by a preponderance, that these
remarks were made. We also find that even assuming that the OM did make
the remarks as complainant alleges, they were isolated remarks and do
not appear to have been sufficiently severe or pervasive to support a
finding of a discriminatory hostile work environment. Therefore, after
a careful review of the record, the agency's response, and arguments
and evidence not specifically addressed in this decision, we affirm the
agency's finding of no discrimination.
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
June 3, 2004
__________________
Date
1 The AJ issued a Show Cause Order, because complainant expressed
disagreement with her ruling on complainant's discovery motions. In her
order, the AJ advised complainant that if he did not respond within 15
days of receipt of the Order, his non-response would be considered a
withdrawal of his request for hearing.