01970106
10-08-1999
Leadell Lee, Appellant, v. Janet Reno, Attorney General, Department of Justice, Agency.
Leadell Lee v. Department of Justice
01970106
October 8, 1999
Leadell Lee, )
Appellant, )
)
v. ) Appeal No. 01970106
) Agency No. F-92-4398
Janet Reno, )
Attorney General, )
Department of Justice, )
Agency. )
)
DECISION
On Monday, September 30, 1996, the appellant, by and through his attorney,
initiated an appeal from a final decision of the agency dated August 30,
1996 concerning his complaint of unlawful employment discrimination in
violation of the Title VII of the Civil Rights Act of 1964, 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 timely
(see 29 C.F.R. �1614.402(b)), and is accepted under 29 C.F.R. �1614.401.
ISSUES PRESENTED
Whether the appellant was discriminated against on the bases of his race
(black), reprisal (EEO activity) and age (born June 25, 1941) when:
(1) he was denied promotional opportunities from 1988 to 1994, and (2)
he was not given a pager.
BACKGROUND
The appellant filed an EEO complaint in 1992 which was later defined
as encompassing the above issues. The investigation did not start
until 1995, largely due to procedural issues which resulted in two
decisions being issued by the Equal Employment Opportunity Commission
(EEOC) remanding the matter.<1> After the investigation, the agency
notified the appellant of his right to request a hearing before an EEOC
Administrative Judge. The appellant requested a final decision without
a hearing, and the final agency decision found no discrimination.
At the time of his complaint, the appellant was employed as a
Special Agent, GS-13, with the Federal Bureau of Investigation (FBI).
In April 1987, he transferred from Chicago to the Los Angeles Division,
West Covina Resident Agency. He worked directly for Supervisor 1, a
Senior Supervisory Resident Agent (SSRA) from April 1987 until 1988,
when Supervisor 1 retired. Supervisor 2 succeeded Supervisor 1.
The appellant worked directly for Supervisor 2 until July 1989, when
Supervisor 2 retired. The appellant transferred within the Los Angles
Division in approximately November 1989 to the Riverside Resident Agency.
There, he worked directly for Supervisor 3, an SSRA, until January 1994,
when Supervisor 3 retired.
Supervisors 1, 2, and 3 agreed to be interviewed by the EEO investigator,
but declined to give affidavits. The investigator wrote detailed
memorandums recounting their interview statements. On appeal, the
appellant argues the merits of his case. He also argues that Supervisors
1, 2, and 3 refused to give affidavits, and that the investigation was
insufficient.
ANALYSIS AND FINDINGS
As an initial matter, given that Supervisors 1, 2 and 3 were retired,
it appears the investigator could not compel them to give affidavits.
The interview memorandums are still admissible, albeit they carry
less weight than sworn statements. We also find the investigation
was sufficient.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973) provides
the analytical framework for proving employment discrimination in
cases in which disparate treatment is alleged and no direct evidence
of discrimination has been presented. Although McDonnell Douglas is a
Title VII case, its analysis is also applicable to disparate treatment
cases brought under the ADEA. See Sutton v. Atlantic Richfield Co.,
646 F.2d 407, 411 (9th Cir. 1981). McDonnell Douglas requires the
appellant to first establish a prima facie case. If the appellant
succeeds, the agency's burden then is to articulate some legitimate,
nondiscriminatory reason for its action in order to rebut the prima facie
case of discrimination. Finally, the appellant has the opportunity
to show, by a preponderance of the evidence, that the agency's stated
reason is a pretext for discrimination. The ultimate burden of proof
that discrimination took place is on the appellant. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Under the
ADEA, the appellant must establish that age was a determining factor
in the agency's action against him. Hazen Paper Company v. Biggins,
507 U.S. 604, 610 (1993).
ALLEGATION 1--DENIED PROMOTIONAL OPPORTUNITIES
Performance Appraisals from 1988 to 1991
All the appellant's annual performance appraisals issued during this
period had overall ratings of fully successful, which he argued were
too low. As an initial matter, we find the appellant did not establish
a prima facie case of reprisal discrimination with regard to his 1988
appraisal by Supervisor 1. While the appellant filed an EEO complaint in
Chicago, which was settled, Supervisor 1 was not aware of this activity.
Since, with regard to the remainder of the appraisal matter the agency
articulated legitimate, nondiscriminatory reasons for the fully successful
ratings, as set forth below, we may proceed directly to whether the
appellant showed by a preponderance of the evidence that the agency's
reasons were merely pretexts to hide discrimination. United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983).
Supervisor 1 explained that it takes time to develop contacts and become
accustomed to working in a new area. He added that while the appellant
was an adequate employee, he was not aggressive. Supervisor 2, who did
the appraisal issued in 1989, indicated the appellant was not a "quick
study," had difficulty with complex investigations, and missed deadlines.
Supervisor 3, who did the appraisals issued in 1990 and 1991, stated
the appellant frequently missed deadlines and had spelling errors in
paperwork, which resulted in frequent calls from others within the FBI.
Supervisor 3 rated the appellant superior in the appraisal issued in 1992.
He explained that the appellant improved after he advised him to maintain
a tickler system.
The appellant countered that his last performance appraisal prior to
coming to Los Angles had a superior rating. He added that Supervisor
3 said he knew the appellant sued the agency and won. Supervisor 3
countered that the appellant said he filed an EEO complaint against
the agency in Chicago and won. There is no persuasive evidence that
Supervisors 1, 2, and 3 rated the appellant other than on the merits of
his performance.
Entry Level Assignments
Supervisor 1 assigned the appellant to property crimes and foreign
counter intelligence. Supervisor 1 explained that these areas had cases
that needed to be worked which he believed the appellant could do based on
his ability. The appellant wrote that he did foreign counter intelligence
and terrorism work under Supervisor 2. Supervisor 2 corroborated this,
but stated that because the appellant was not doing well was reassigned
interstate shipment theft and government crimes. Supervisor 3 assigned
the appellant applicants and civil rights matters. Supervisor 3 explained
that appellant's predecessor was assigned these areas, and they would
give him an opportunity to observe the appellant's work.
The appellant averred that based on his prior agency experience,
which included bank robberies, fugitives, general and property crimes,
instruction in firearms and SWAT, and applicant interviewer, he should
have been given other assignments. However, while the appellant averred
that he was exclusively assigned entry level work, this contention
is uncorroborated. Given that Supervisor 2 dropped the appellant from
foreign counter intelligence work, and its inherent complexity, it does
not appear this work was entry level. In any event, there is no evidence
that the supervisors' explanations for the appellant's assignments were
pretexts to mask discrimination.
Not Serving as a Relief Supervisor from 1987 to July 1992; being Removed
from the Career Development Program; Concerns while Serving as a Relief
Supervisor; and Exclusion from Meetings.
While the appellant referred to being removed from the Career Development
Program, he was not removed therefrom. Rather, it appears the appellant
is actually alleging that his development program was inactive when he
did not serve as a relief supervisor.
Supervisor 1 explained that he did not use the appellant as a relief
supervisor because others were fulfilling those duties. Supervisor 1
also advised that the appellant did not ask to be a relief supervisor,
and only expressed active interest at the time Supervisor 1 retired.
Supervisor 2 stated that while he was aware the appellant served as
a relief supervisor in Chicago, he did not use the appellant in this
capacity because the appellant had difficulty working his own cases,
missed deadlines, there were concerns with the appellant working complex
issues, and he needed to improve. Supervisor 3 stated he was aware
the appellant previously served as a relief supervisor in Chicago.
He explained that he did not assign the appellant the duty of relief
supervisor because the appellant did not have at least a superior rating,
a requirement to serving as relief, he wanted to gauge the appellant's
performance which had been problematic, and he already had relief
supervisors.
After Supervisor 3 rated the appellant superior in April 1992,
he started assigning him as a relief supervisor in August 1992.
By this time (June 1992), the appellant had contacted an EEO counselor
regarding the instant complaint. In the context of attempting to resolve
issues, Supervisor 3 agreed to use the appellant as a relief supervisor.
Supervisor 3 explained that the appellant's work was improving and there
was a greater need for relief.
The appellant averred that the agency's reasons for not assigning him the
relief duty for a period of time were pretexts to mask discrimination.
He noted that he served as a principal relief supervisor at two prior
posts. The appellant also averred that he learned in approximately June
1992 that Comparisons 1 and 2 (both white and born in April 1956) were
appointed as reliefs and they had less experience than he. Finally,
the appellant argued that he was not offered relief duties until after
he sought EEO counseling.
While in August 1992 Supervisor 3 indicated that he intended in the
near future to request that Comparisons 1 and 2 do relief supervisory
work and that they were very capable, he countered they did not become
reliefs under his tenure.
The weight of the evidence is that the appellant was not used as a
relief supervisor because he did not initially express interest, and his
performance was insufficient. Waiting some months to make the appellant
a relief after he finally got a superior rating does not demonstrate
discrimination. Also, Supervisor 3's attempt to help resolve an EEO
claim is not evidence of discrimination.
The appellant raised concerns which occurred during his tenure as a relief
supervisor. He averred that Supervisor 3 locked his desk and files,
cutting him off from administrative information. Supervisor 3 countered
that he locked his files because they dealt with personnel matters not
of concern to relief supervisors, and all information needed to perform
relief was available to the appellant and other relief supervisors.
The appellant has the burden of proving discrimination and his allegation
is uncorroborated. The appellant also averred that while he served as
a relief supervisor, he did not get ratings for this duty. Supervisor 3
stated that it was his practice to rate all relief supervisors every six
months, but he could not specifically recall evaluating the appellant.
There is no evidence the appellant was rated. Given our other findings
with regard to Supervisor 3, we find this apparent lapse does not evidence
discrimination in trying to hold the appellant back.
The appellant also averred that Supervisor 3 would not take him to
meetings involving local law enforcement. Supervisor 3 countered that
the appellant occasionally complained about having to attend meetings
with police departments and the main Los Angeles FBI office, and he would
remind the appellant that this was part of his job as a relief supervisor.
Supervisor 3 stated he was unaware of what meetings the appellant was
allegedly excluded from. The appellant's contention about being excluded
from meetings is unsupported by the record.
Not Selected for Promotion in August 1989, and not Appointed to Acting
SSRA and Primary Relief Supervisor in December 1994.
In June 1989, the agency announced the position of SSRA, GM-14, Los
Angeles Division, West Covina Resident Agency. This position opened as
a result of the retirement of Supervisor 2. The Los Angeles Division
Career Board rated five eligible local candidates, and the appellant
ranked last. A memorandum by the Secretary of the Los Angeles Division
Career Board indicates the Board assessed the appellant in his interview
as being unprepared and unsure of many of his answers. It also found
that his organizational skills, management ability, and knowledge of the
administrative responsibilities of an FBI supervisor were extremely weak.
It did not recommend the appellant for promotion. Notes by Los Angeles
Division Career Board members contained negative comments such as the
appellant being unable to handle complex cases and lacking experience
with them, his interview being rambling, disoriented, and unprepared,
and his not understanding the role of an SSRA.
The Special Agent in Charge of the Los Angeles Division recommended to
the FBI Headquarters Mid-Level Career Board that the eventual selectee
(white, born November 8, 1949) be chosen. The recommended selectee
was not a local candidate and worked with FBI headquarters. The memo
explained that candidates with FBI headquarters experience tended to
make better supervisory special agents in that they do a more thorough,
innovative work. The memo added that the recommended selectee was well
thought of by those in the local office who worked with him in his
capacity of FBI headquarter's supervisor. The recommending official
provided an affidavit corroborating the memo.
The FBI Headquarters Mid-Level Career Board chose the recommended
selectee. It noted that the selectee's FBI headquarters experience
gave him an "extra dimension," and that he was rated excellent in his
performance in the FBI headquarters counter terrorism section.
The appellant argued that he was better qualified than the selectee.
Under Title VII, an employer has discretion to choose among equally
qualified candidates, so long as the selection is not based on unlawful
criteria. In the absence of such evidence, the Commission will not
second guess the agency's assessment of the candidates' qualifications.
Burdine, at 259. There was no such evidence in this case.
After Supervisor 3 retired, Comparison 3 (race and age unidentified) was
chosen in December 1994 to serve as the Acting SSRA and Primary Relief
Supervisor for the Riverside Resident Agency. Supervisor 3 stated that
when he retired, he recommended, based on Comparison 3's ability, that he
be Acting SSRA. The appellant contended that from August 1992 to December
1994, he was the only relief supervisor as the Riverside Resident Agency.
Comparison 3 returned to the Riverside Resident Agency in 1992 from
a special assignment. Supervisor 3 countered that after Comparison 3
returned, both he and the appellant performed as relief supervisors.
There is little information in the record on Comparison 3's background,
and Supervisor 3 did not specify what abilities he relied on in
recommending Comparison 3. However, we do not view this incident
in a vacuum, but as part of the appellant's allegation that he was
discriminatorily denied opportunities to advance. Given our findings
with regard to Supervisor 3, we find the record sufficiently shows the
appellant was not discriminatorily held back.
ALLEGATION 2-�NOT GIVEN A PAGER
The appellant contended that he was the only agent in the Riverside
Resident Agency who did not have a pager. He stated that he needed a
pager when he was on call, and when he would borrow one from another
agent but receive calls for that agent.
Supervisor 3 identified three Special Agents, including the appellant,
who did not have pagers. Supervisor 3 stated that his numerous requests
to the Los Angeles Office for pagers went unheeded, and due to the type
of cases the appellant worked, a pager was not critical, as opposed to
what other agents were working. Supervisor 3 stated that all agents
rotated on weekend duty, and when the appellant was scheduled he was
given a pager.
Pursuant to an attempt to resolve EEO issues, Supervisor 3 agreed in
August 1992 to provide the appellant the pager of a special agent who
was transferring out.
The appellant has not shown that the agency's reasons for not providing
him a pager were pretexts to mask discrimination. Moreover, Supervisor
3's resolution attempt is not evidence of discrimination.
Accordingly, the agency's final decision finding no discrimination
is affirmed.
CONCLUSION
Based upon a review of the record, and for the foregoing reasons, it
is the decision of the Commission to AFFIRM the final decision of the
agency which found that the appellant was not discriminated
against with regard to various actions.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Oct. 8, 1999
______________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1Lee v. Department of Justice (Federal Bureau of Investigation), EEOC
Appeal No. 01931971 (May 12, 1993); Lee v. Department of Justice
(Federal Bureau of Investigation), EEOC Request No. 05930777 (July 21,
1994).