01980673
01-21-2000
LeRoy H. Nassit, Complainant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
LeRoy H. Nassit v. Department of the Treasury
01980673
January 21, 2000
.
LeRoy H. Nassit,
Complainant,
v.
Robert E. Rubin,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01980673
Agency No. 962269
DECISION
Complainant filed a timely appeal from a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of sex (male) 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> The appeal is accepted in accordance with EEOC Order
No. 960.001. For the reasons that follow, the Commission AFFIRMS the FAD.
The record reveals that during the relevant time, complainant was
employed as an Advisor at the agency's Internal Revenue Office, Houston,
Texas. Complainant claims that his supervisor (S) issued an unwarranted
Memorandum of Discussion on April 30, 1996 (incident 1), and then gave
him an unfairly low (Fully Successful) annual performance appraisal in
July 1996 (incident 2). He claims that S's actions were motivated by
animus toward his sex as the only male under her supervision, and also
in reprisal regarding his 1995 EEO activity and status as a former EEO
counselor.
Believing he was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a formal complaint. At the conclusion
of the investigation, complainant requested that the agency issue a FAD.
The FAD concluded that complainant established a prima facie case of sex
discrimination regarding incident 2, because he was the only male under
S's supervision who received a rating this low, but not as to incident
1 because S had also disciplined a female employee for the same type of
infraction. The FAD then determined that complainant established a prima
facie case of reprisal regarding incident 2, referencing the proximity
of EEO contact regarding incident 1, but not as to incident 1 because S
was unaware of the 1995 EEO activity, and there was no connection between
incident 1 and complainant's prior EEO counselor status which was some
years prior to incident 1. The FAD then found that the agency was able
to articulate legitimate nondiscriminatory reasons with respect to both
incidents, and that complainant was not able to show that these reasons
were a pretext for discrimination.
On appeal, complainant contends that these incidents were part of
a pattern of harassment and hostile work environment based on his
"minority" status, and that the agency failed to consider this part of
his claim. However, a reference to this claim does not appear in the EEO
counselor report, nor is it set forth in the formal complaint. Moreover,
complainant was properly notified of the issues accepted by the agency
for investigation, and did not object, nor did he file an amendment to
his complaint to include a harassment claim. Consequently, this issue is
not properly before us on appeal, and we will not consider it herein. The
agency requests that we affirm its FAD.
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), 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 concurs with the determinations in the FAD.
Regarding incident 1, the record shows that prior to S's tenure,
complainant was investigated for improper tax disclosure. Based on the
report of that investigation, a 30 day suspension was recommended, which
was reduced to a Memorandum of Discussion. Complainant has presented no
evidence to suggest that this action was motivated by sex discrimination
or reprisal, and we agree with the FAD that he has failed to present a
prima facie case on either claimed basis regarding incident 1.
Regarding incident 2, we find that S documented her appraisal of
complainant with three written negative reports and provided a narrative
supporting her decision. She testified that complainant was often away
from his work assignment, and that she received complaints from other
managers that he was loitering in their work area. This testimony is
corroborated by complainant's former supervisor who noted the same
problems with his performance. S also testified that complainant
failed to properly document his case records, and that she received
complaints from District Counsel and customers regarding untimeliness. S
additionally testified that complainant did not cope well with deadlines,
and that he avoided special project assignments. Complainant argues
that management was motived by several reasons: wanting to transfer
him to the field; subjecting him to a RIF; and disadvantaging him in
competing for other jobs. However, we find that he fails to show how
any of these reasons, even if true, are related to his sex or prior EEO
activity. Moreover, although he argues that this rating was not deserved,
he presents no evidence to demonstrate that his work warranted a higher
evaluation. Consequently, we concur with the FAD that he has failed to
show that the agency's reasons are a pretext for sex discrimination
or reprisal. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248 (1981).
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 FAD.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 21, 2000
__________________
Date
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.