01970635
06-22-1999
Louis C. Lairy, Appellant, v. Reno, Attorney General, Department of Justice, Agency.
Louis C. Lairy, )
Appellant, )
)
v. ) Appeal No. 01970635
) Agency No. I-93-6301 Janet
Reno, )
Attorney General, )
Department of Justice, )
Agency. )
)
DECISION
INTRODUCTION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission) from the final decision of the
agency concerning his allegation that the agency violated 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 et seq.,
and the Age Discrimination in Employment Act of 1967, as amended,
29 U.S.C. �621 et seq. The appeal is accepted by the Commission in
accordance with the provisions of EEOC Order No. 960.001.
ISSUES PRESENTED
The issues presented herein are: (1) whether appellant has established
that the agency discriminated against him based on race (Black), sex
(male), physical disability (Sjogrens Syndrome), and age (46) when he was
not promoted to the GS-12 level; and (2) whether appellant has established
that he was harassed in retaliation for his prior EEO activity.
BACKGROUND
During the period in question, appellant was employed as an
Asylum Officer, GS-0930-11 (the Position), with the Immigration and
Naturalization Service. Appellant filed a formal complaint on September
13, 1993, in which he raised what have been identified above as Issues 1
and 2. Following an investigation of this complaint, appellant did not
request an administrative hearing and the agency issued a final decision
(FAD) dated September 25, 1996, finding no discrimination. It is from
this decision that appellant now appeals.
The record reveals that appellant was hired in 1992 at the GS-11 level.
Although appellant became eligible for promotion to the GS-12 level in
February 1993, his supervisor (Responsible Official 1, RO 1) did not
recommend him for promotion. In arguing that the failure to promote
him was discriminatory, appellant cites several factors. First, he
states that in February 1993 he received an in-grade increase that was
approved by RO 1, and he argues that, because this indicated his work
was satisfactory, he was qualified for a promotion. Second, appellant
states that when he initially asked to be promoted, RO 1 told him that
his case backlog was too high and also cited an incident where appellant
had mistakenly interviewed the wrong witness during an investigation.
According to appellant, however, �[e]verybody had large case backlogs
at that time,� and he also states he had been assured that the witness
mix-up would not be held against him at the time he became eligible
for promotion. Finally, appellant cites affidavits from several Asylum
Officers who believe that RO 1, and particularly her supervisor (RO 2),
treat White Asylum Officers better than minority officers in the areas
of promotions and attendance.
In response, RO 1 explained that �an upgrade isn't automatic just because
someone has been here for a year. You have to be able to show that
you can do the work at the next higher grade level.� In this regard,
the vacancy announcement under which appellant applied for his Asylum
Officer position states, in relevant part:
Applicants selected for these positions at grades below the GS-12 level
will have the opportunity to advance to intervening grade levels without
further competition provided he/she meets all the Office of Personnel
Management requirements, performing work at the higher grade level,
and upon recommendation of the supervisor.
RO 1 explained that, based on both the quality of appellant's work and
his level of production, he was barely performing at the GS-11 level.
Regarding quality, RO 1 testified that appellant's work was generally
returned to him and often had to be rewritten. This assessment was
consistent with appellant's 1993 performance appraisal, on which he
received a rating of �Minimally Successful� on the element pertaining to
the quality of his work. With regard to productivity, RO 1 explained that
Asylum Officers should complete 26 cases per month for an �Excellent�
rating, 23 for a �Fully Successful� rating, and 20 for a �Minimally
Successful� rating. The record reveals that, at the time appellant became
eligible for promotion, he was averaging fewer than 20 case completions
per month.
In support of his claim of disability discrimination, appellant
has submitted medical evidence indicating that he has an autoimmune
disorder known as Sjogrens Syndrome, which appears to be a form of lupus.
Appellant states that one of the side effects of this condition is that
he tires more easily and loses energy more quickly. Appellant states
that this makes it hard for him to meet the same production standards
as other Asylum Officers, but that, although he had considered asking
for a reduction in those standards, he did not do so because of the
�hostile atmosphere.�<0>
Issue 2
Appellant states that after he initiated EEO counseling in May 1993
RO 1 began to harass him and scrutinize his work. In support of this
assertion, appellant has cited several incidents, the first being that
RO 1 began keeping a file on him. In response, RO 1 states that she
keeps files on all of her Asylum Officers which contain their daily
report sheets, copies of their assessments, and any personnel actions.
The second incident appellant raises involves an instance in which he went
into RO 1's office and removed the casebook she kept regarding his work.
In support of that action, appellant states it was his understanding that
he was responsible for keeping his casebook up-to-date. According to
appellant, when RO 1 learned that he had removed the casebook from
her office, she yelled at him. RO 1 acknowledged becoming upset with
appellant, but explained that the casebooks were solely for her use and
that it was wrong for appellant to have rearranged its contents.
Finally, appellant cites a meeting between himself, RO 1, and the
union president that was held to discuss a situation where �management
wanted to take some days from [him].� According to appellant, when the
union president began to explain the issue to RO 1, she responded that
appellant was a �complaining b******.� Although appellant's testimony
on this question was corroborated by the union president, RO 1 denied
having made the comment.
ANALYSIS AND FINDINGS
Issue 1
Race, Sex, & Age
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. Appellant has the initial burden
of establishing a prima facie case of discrimi-nation. If appellant
meets this burden, then the burden shifts to the agency to articulate
some legitimate, nondiscriminatory reason for its challenged action.
Appellant must then prove, by a prepon-derance of the evidence, that the
legitimate reason articulated by the agency was not its true reason, but
was a pretext for discrimination. McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). This analysis is equally applicable to claims brought
under the ADEA. Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979).
Assuming that appellant can establish a prima facie case based on
race, sex, and age, we find that the agency articulated a legitimate,
nondiscriminatory reason for the decision not to promote him to the
GS-12 level. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248,
254 (1981). Specifically, RO 1 testified that appellant was barely
performing at the GS-11 level and that, as such, he had not demonstrated
the ability to perform at the GS-12 level.
At this point, appellant bears the burden of establishing that the
agency's articulated reason is a mere pretext for discrimination.
Appellant can do this either directly, by showing that a discrimi-natory
reason more likely motivated the agency, or indirectly, by showing that
the agency's proffered explanation is unworthy of credence. Id. at 256.
In St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), the Supreme
Court held that a fact finder is not required, as a matter of law, to
find discrimination whenever it finds that the employer's explanation is
not credible. The Court further made clear that a fact finder may find
discrimination in such circumstances. The critical factor is that a fact
finder must be persuaded by the complainant that it was discrimination
that motivated the employer to act as it did. According to the Court,
it is not sufficient "to disbelieve the employer; the fact finder must
believe the plaintiff's explanation of intentional discrimination."
Id. at 519 (emphasis in original).
We find that appellant has not demonstrated pretext. Although appellant
sincerely believes that he deserved a promotion, the evidence of record
reveals that, under the standards articulated by RO 1, his performance
did not merit a promotion. Furthermore, appellant has not demonstrated
that those standards were applied disparately. Although appellant
argues that it is difficult for minorities to get promoted, he has
not demonstrated that non-minorities are treated any differently in
the promotion process.<0> Finally, we have carefully considered the
testimony of those individuals who opined that RO 1 and RO 2 discriminate
against minorities. Although the fact that such a perception exists is
disturbing, it does not, in light of the other evidence in the record,
establish that appellant was discriminated against. Accordingly,
because appellant has not demonstrated that the reasons articulated for
his non-promotion are pretextual, we find he has not established that
he was discriminated against based on race, sex, or age.
Disability
Having carefully considered appellant's disability claim, we note
it is not apparent in what way he believes he has been discriminated
against under that basis. Specifically, he has not alleged that
he was treated differently than non-disabled individuals, and,
although he implies that he should have been accommodated by having his
production standards lowered, he acknowledges that he never requested any
accommodation.<0> For these reasons, and because the agency articulated
reasons for the decision not to promote appellant that were unrelated
to his alleged disability, we find he has not established disability
discrimination.
Issue 2
In order for appellant to establish that RO 1 harassed him in retaliation
for his prior EEO activity, he must initially demonstrate that the alleged
harassment was related to that activity. Appellant must also demonstrate
that the alleged harassment was "sufficiently severe [and] pervasive to
alter the conditions of [his] employment and create an abusive working
environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
As discussed, the incidents cited by appellant in support of his claim are
that RO 1 kept a file on him, yelled at him for rearranging his file, and
referred to him on one occasion as a �complaining b******.� Initially, we
find insufficient evidence to conclude that these incidents were related
to appellant's EEO activity. Although RO 1's apparent use of the term
�complaining b******� is disturbing, we note that it was not made in
the context of appellant's EEO activity. Furthermore, we find that the
three incidents in question were not sufficiently severe and pervasive
to alter the conditions of appellant's employment. Accordingly, we find
appellant has not established that he was discriminatorily harassed.
CONCLUSION
Based on a review of the record and for the reasons cited above, it is
the decision of the Commission to AFFIRM the FAD and find appellant has
not established that the agency discriminated against him as alleged.
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:
06-22-99
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
01 After filing his formal complaint, appellant submitted a letter from
his physician dated September 15, 1993, which states, in relevant part,
�[Appellant] is clearly physically [disabled] by his medical condition
and should not be expected to physically perform his duties at the same
standard as others.�
02 In his affidavit, appellant identified two Hispanic Asylum Officers
supervised by RO 1 whom he states had difficulty getting promoted to the
GS-12 level. According to RO 1, the first (cont.) of these individuals
was promoted several months after becoming eligible. RO 1 testified that
the second individual was not promoted due to performance problems and,
in this regard, the record reveals that her production was lower than
appellant's during the period in question.
03 Pursuant to both the Americans With Disabilities Act and the
Rehabilitation Act, agencies are obligated to reasonably accommodate
the known physical and mental limitations of qualified individuals with
disabilities unless doing so would constitute an undue hardship. See
29 C.F.R. �1630.2(o). We note, however, that this obligation does not
require an employer to lower production standards. See 29 C.F.R. �1630.10.