01a40053
02-02-2005
Joseph James, Complainant, v. Alphonso Jackson, Acting Secretary, Department of Housing and Urban Development, Agency.
Joseph James v. Department of Housing and Urban Development
01A40053
February 2, 2005
.
Joseph James,
Complainant,
v.
Alphonso Jackson,
Acting Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 01A40053
Agency No. KC-94-05R
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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
During the relevant time, complainant was employed as a Regional
Counsel at the agency's Kansas City Regional Office in Kansas City,
Kansas.<1> On November 30, 1993, complainant initiated EEO contact.
Informal efforts to resolve his concerns were unsuccessful.
On February 22, 1994, complainant filed a formal complaint alleging that
he was discriminated against on the bases of race (African-American),
sex (male), and age (D.O.B. 5/21/47) when management officials:
(1) gave direct assignments to his staff without his knowledge or
approval;
(2) disseminated negative information about him between 1982 and 1994;
(3) interfered with attempts to promote or discipline his staff;
(4) ridiculed him and the legal profession publicly;
(5) disregarded legal advice to the department's detriment when he was
refused certain information pertaining to two cases;
(6) met with political and other officials to have him fired or
reassigned from his position as Regional Counsel;
(7) used inappropriate language in departmental meetings towards blacks
and women;
(8) denied services and personnel support for his office;
(9) authorized the release of personal information that was in the
possession of the personnel office;
(10) contacted parties in the Chicago Region and headquarters to
disseminate false information concerning his real estate holdings; and
(11) lowered his 1993 performance appraisal.
On March 28, 1995, the agency issued a FAD dismissing claims (1) -
(10) on the grounds of mootness, due to complainant's transfer to its
Beaumont, Texas office. The agency dismissed claim (11) on the grounds
that complainant did not timely raised it with the EEO Counselor.
Finally, the agency noted that complainant attempted to amend his
complaint by raising several claims that had occurred after he filed
the formal complaint (his transfer out of the Kansas City Office; being
called a thief by his supervisor; not being allowed an opportunity to
complete exit processing; being accused of being absent without leave;
and having items stolen from his office). The agency dismissed these
claims on the grounds that complainant had not raised them with the EEO
Counselor. Furthermore, the agency advised complainant, if he wanted
to pursue these claims, he should contact an EEO Counselor.
On July 28, 1995, complainant filed a civil action in the United States
District Court for the Western District of Missouri (identified as civil
docket number 95-0585-CV-W-EBH). By order dated February 5, 1996, the
District Court dismissed complainant's civil action without prejudice
for lack of subject matter jurisdiction. Thereafter, complainant filed
an appeal from the March 28, 1995 FAD to the Commission on February
15, 1996.
On appeal, the Commission dismissed complainant's appeal on the grounds
that it was untimely filed. James v. Department of Housing and Urban
Development, EEOC Appeal No. 01962716 (March 24, 1997).
On April 10, 1997, complainant initiated a request to the Commission to
reconsider its decision of March 24, 1997. The Commission determined
that because complainant's civil action was dismissed without prejudice,
he was allowed to proceed in the administrative process and that dismissal
in the instant case was improper. Further, the Commission determined
that it would address the agency's dismissal of claims (1) - (11).
With respect to claims (1) - (10), the Commission noted that the agency
dismissed these claims on the grounds of mootness. The Commission
concluded that the agency improperly dismissed claims (1) - (10) on the
grounds of mootness pursuant to 29 C.F.R. � 1614.107(a)(5).
With respect to claim (11), the Commission concluded that complainant's
contact with the Director of EEO on November 30, 1993, under the instant
circumstances, constituted sufficient EEO Counselor contact because the
Director was logically connected to the EEO process. The Commission
concluded that the agency improperly dismissed claim (11) for untimely
Counselor contact.
Moreover, the Commission determined that complainant's additional claims
(complainant's transfer out of the Kansas City Office; being called a
thief by his supervisor; not being allowed an opportunity to complete
exit processing; being accused of being absent without leave; and having
items stolen from his office) were not "like or related" to claims (1)
- (11). The Commission further determined that the agency properly
dismissed these claims for failing to raise them with the EEO Counselor.
Consequently, the Commission granted complainant's request for
reconsideration and remanded the case to the agency to process claims
(1) - (11) in accordance with 29 C.F.R. � 1614.108. James v. Department
of Housing and Urban Development, Request No. 05970682 (June 17, 1999).
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Initially,
complainant requested a hearing, but subsequently withdrew such request
and asked the agency to issue a final decision.
The agency issued the instant FAD on August 25, 2003. Regarding claim
(11), the agency assumed, arguendo, that complainant established a
prima facie case of race, sex and age discrimination, but found that
management nonetheless articulated legitimate, nondiscriminatory reasons
for its actions. Furthermore, the agency concluded that complainant
failed to prove that he was subjected to harassment sufficiently severe
or pervasive so as to render his work environment hostile (claims (1) -
(11)).
Regarding claim (11), the former Acting Secretary Representative and
Deputy Administrator for the Kansas Regional Office (DA) stated that
he had no recollection of completing complainant's 1993 performance
appraisal, and believed the Headquarters' Office of Counsel was
responsible for completing the appraisal. The agency further noted
that the record reveals that complainant's appraisal issued on October
28, 1993, showed that he was given a "fully successful" rating on the
following five elements: field management plan; audits and evaluations
and management control program; program and resource management; equal
opportunity/affirmative employment program; and individual performance
and representation.
The agency noted that the record contains a copy of the General Counsel's
Informal Grievance Disposition memorandum dated March 30, 1994, concerning
complainant's November 19, 1993 grievance. Therein, the General Counsel
noted that by letter dated February 25, 1994, from the Deputy General
Counsel, complainant was afforded an opportunity to provide supporting
documentation to justify a rating higher than "fully successful" on
each individual element rating.<2> The General Counsel further noted
while complainant provided a narrative on his general performance,
he failed to provide sufficient evidence to warrant a higher rating.
The General Counsel denied complainant's grievance.
The agency concluded that a review of the record reveals that complainant
was not given an outstanding rating because he failed to meet the
necessary requirements. Specifically, the agency noted a memorandum from
the Associate General Counsel and Assistant General Counsel explaining
their findings of a review conducted on May 5 and 6, 1993, concerning
complainant's management and operation of his office. The agency
noted that a review of the memorandum showed that there was a lack of
initiative, leadership, anticipation of problems, and communication, all
of which were necessary to receive an outstanding rating. Furthermore,
the agency concluded that complainant failed to show similarly situated
individuals outside of his protected classes were treated more favorably.
Furthermore, the agency concluded that complainant failed to present
evidence reflecting that his race, sex or age was a factor in management's
decision to lower his performance appraisal to "fully successful."
Regarding claim (1), the DA stated that he did not give direct assignments
to a named Staff Attorney or any other member of complainant's staff.
With respect to complainant's claim that the DA had a Personnel Specialist
review work that should have been reviewed by his staff, the DA stated
that he never asked the Personnel Specialist to "review legal work."
In her affidavit, the Personnel Specialist stated while she provided
technical advice and assistance to the DA, she never performed "legal
work" for him.
Regarding claim (2), the DA stated that he never "discussed matters
related to Complainant outside proper organizational channels."
Regarding complainant's claims that the DA made comments about him to
other agency officials including the mayor of Kansas City, the DA stated
that these claims were �totally and absolutely� false. Furthermore,
the DA stated that complainant's office was reviewed by specific direction
of the Deputy Secretary's Office.
Regarding claim (3), the DA stated that he was not involved in the hiring
of a named Regional Counsel, and it was the General Counsel who made
the decision to hire the Regional Counsel to work with complainant's
staff. Regarding complainant's claim that the Regional Counsel was
hired for his staff at the GS-13 level despite the fact that a Paralegal
Specialist had been on his staff longer, the DA stated that the Paralegal
Specialist was detailed as a clerk for approximately two years until she
passes the bar examination to be qualified as a journeyman attorney.
Regarding complainant's claim that the Regional Counsel had less
experience than the Paralegal Specialist, the DA stated that it was
"totally without foundation." Regarding complainant's claim that the
St. Louis Chief Counsel was rated and promoted without his knowledge,
the DA stated that he had no recollection of working with the St. Louis
Chief Counsel. Regarding complainant's claim that the DA reduced
his proposed suspension of a Legal Technician to a reprimand, the DA
stated "contrary to complainant's claim, I did support his disciplinary
action re: [ the named Legal Technician] who was eventually dismissed
from employment [emphasis added]." Furthermore, the DA stated that he
supported complainant's disciplinary actions "equally with the actions
taken by white supervisors."
Regarding claim (4), the DA stated that he never "ridiculed" complainant
or the legal profession. The DA further stated that he never told
complainant he had a "low IQ" because he found him to be intelligent.
Furthermore, the DA stated that he worked closely with other named
attorneys for whom he had high regard.
Regarding claim (5), the DA stated that complainant had no advice
concerning the Kansas City Housing Authority that was not properly
considered in administrative proceedings. Regarding complainant's claim
that the DA refused to meet with him to prepare for a Merit Systems
Protection Board (MSPB) appeal of a former employee who was terminated
from agency employment, the DA stated that it was false, that the MSPB
upheld the former employee's termination, and the appeal was "not lost
as stated by the Complainant [emphasis added]."
Regarding claim (6), the DA stated that complainant's claims that he
met with other political and agency officials to have complainant fired
or reassigned from his position of Regional Counsel to be "false in
its entirety."
Regarding claim (7), the DA denied complainant's claims that he used
inappropriate language in departmental meetings towards blacks and women
in general. The DA stated "most obnoxious to me is the �n' word which
I use neither publicly or privately."
Regarding claim (8), the DA denied complainant's claims that there was an
agreement between him and other agency officials to put complainant's
requests for supplies, equipment and training on the back burner
to be "totally false." The DA stated that he was never involved in
complainant's request for supplies, and that "any such delays that might
have occurred were due to budget restraints experienced by all offices
on an equal basis."
Regarding claim (9), the DA confirmed complainant's claim that he
submitted legal papers concerning complainant to the General Counsel for
advice and disposition. The DA stated that the personal information
"constituted a subpoena from Jackson County Missouri for unpaid child
support filed by complainant's former secretary with whom he had an open
office relationship." The DA further stated that he acted "properly
and discreetly relative to this issue."
Regarding claim (10), the DA confirmed complainant's claims that he
checked with the agency's Chicago Regional Office concerning complainant's
real estate holdings. The DA stated that complainant "apparently had
holdings in slum urban real estate which for a HUD employee constitutes
a serious Standard of Conduct violation." The DA further stated "such
issues cannot be ignored and I acted properly in all aspects."
Furthermore, the agency noted in his affidavit, the Human Resources
Officer stated that he had no knowledge of complainant's claims (claims
(1) - (10)). The Human Resources Officer further stated that it was his
opinion that there was "more of a difference of management styles and
[Complainant] did not get along with too many managers. It was his way
or no way."
On appeal, complainant contends that agency officials conspired to
terminate his agency employment. Complainant further states "subsequent
to my removal from office, HUD has continued to harass me and to interfere
with my efforts to earn a living.� Complainant further states that he was
forced to resign from agency employment in September 1997. Furthermore,
complainant contends that after he left the agency's Beaumont, Texas
office, he applied for a position with the Houston Housing Authority
and that "once his candidacy was made known, HUD disseminated negative
information about me..."
Harassment
To establish a claim of harassment based on race, color, national
origin, and sex, a complainant must show that (1) he is a member of
the 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. USPS, EEOC Appeal
No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11. The harasser's
conduct should be evaluated from the objective viewpoint of a reasonable
person in the victim's circumstances. Enforcement Guidance on Harris
v. Forklift Systems, Inc., EEOC Notice No. 915.003 (March 8, 1994).
Further, the incidents must have been �sufficiently severe and pervasive
to alter the conditions of complainant's employment and create an abusive
working environment.� Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75
(1998). In the case of harassment by a supervisor, complainant must
also show that there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Upon review of the record, we find that the environment created within
complainant's workplace was not sufficient to show a hostile work
environment due to his race, sex or age (claims (1) - (10)). Therefore,
we conclude that complainant failed to establish his claim of unlawful
discrimination due to harassment.
Disparate Treatment
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 complainant to prevail, she 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. See 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. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
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).
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 the 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. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
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); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, the Commission finds that the agency
articulated legitimate, non-discriminatory reasons for its employment
actions, which we determine were not persuasively rebutted by complainant
(claim (11)). Complainant has not demonstrated that the agency's
articulated reasons for its employment actions were a pretext for
discrimination.
Finally, we note that complainant, on appeal, raises new claims of
constructive discharge. We note that these claims were not previously
raised. It is inappropriate for complainant to raise these new claims
for the first time as part of his September 2003 appeal.
Accordingly, the agency's final 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
February 2, 2005
__________________
Date
1The record reveals that in September 1997,
complainant resigned from agency employment.
2The record contains no copy of the Deputy General Counsel's February 25,
1994 letter to complainant.