01981590
07-27-2001
Melvin W. Park, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, (Centers for Disease Control and Prevention) Agency.
Melvin W. Park v. Department of Health and Human Services
01981590
07-27-01
.
Melvin W. Park,
Complainant,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
(Centers for Disease Control and Prevention)
Agency.
Appeal No. 01981590
Agency No. CDC-EPO-007-97
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. Complainant alleged that he was discriminated
against on the bases of sex and reprisal (prior EEO activity) when: (1)
in July 1996, he was told that he could not take a 30 minute lunch break;
(2) on September 13, 1996, he was placed in a performance improvement
plan (PIP); (3) on October 16, 1996, he was given a verbal reprimand by
his supervisor (RMO I) who stated, �Yes, you will be terminated unless
there is a radical change;� and (4) on November 6, 1996, he was given
a termination letter, with the option of resigning, six days after he
made management aware that he was going to seek EEO counseling.
The record reveals that complainant, a probationary employee, was employed
as a Technical Writer/Editor, GS-1083-11, at the agency's Epidemiology
Program Office in Atlanta, Georgia. In July 1996, the acting supervisor
(RMO II) told complainant that it was illegal for him to take more
than a 30 minute lunch break. The �lunch break issue� arose when the
secretary was on leave, and the editors had to take shifts to answer
the telephones. RMO II asked complainant to take her early shift, but
when RMO II informed complainant what time she would be returning to the
office, complainant told her that he would miss his hour lunch break.
RMO II averred that she explained to complainant that agency policy only
allowed employees to take 30 minute lunch breaks. Complainant responded
by informing RMO II that he was told he could roll over his two fifteen
(15) minute breaks into his 30 minute lunch break to make a one-hour
lunch break. RMO II told complainant that she did not think he was
correct, but would check with the administrative office.
On September 13, 1996, RMO I placed complainant on a PIP. RMO I avers
that she did so because she had concerns about complainant's efficiency,
timeliness and judgment. RMO I further stated that complainant failed to
use the standards and guidelines established for other editors to turn out
quality publications in a timely manner. Complainant contended that he
had received no negative feedback orally or in writing from RMO I prior
to the lunch break incident. He further averred that he was qualified
for the position and was satisfying the requirements of the position.
On October 16, 1996, RMO I verbally reprimanded complainant, telling
him that her intention was to terminate him unless there was a radical
change in his performance. When RMO I evaluated complainant's PIP,
she told complainant that she still had concerns about his judgment and
that his judgement affected his efficiency. Complainant told RMO I that
he did not believe she had evaluated his PIP fairly and that he had met
all of the conditions of the PIP.
On November 6, 1996, complainant was given a termination letter,
with the option of resigning, six days after he made management aware
that he was going to seek EEO counseling. Complainant averred that
RMO I had told complainant orally that his productivity had improved.
However, the termination letter stated that complainant's productivity
had not improved. By letter dated November 8, 1996, complainant tendered
his resignation.
Believing he was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on December
18, 1996. 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.
When complainant failed to respond within the time period specified in
29 C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of sex or reprisal discrimination. Therefore,
the agency found that it had not discriminated against complainant.
Complainant makes no contentions on appeal.
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, he 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.
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). 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. 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. United States
Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990).
For the purposes of this decision, the Commission assumes that complainant
established a prima facie case of sex and reprisal discrimination.
Therefore, the burden shifts to the agency to articulate legitimate,
nondiscriminatory reasons for its actions. Here, with respect to
allegation 1, the agency presented evidence that RMO II believed that
agency policy only allowed 30 minute lunch breaks. The record reveals
that the administrative office told RMO II that, technically, employees
could not roll over their 15 minute breaks to make a longer lunch break.
With respect to allegation 2, RMO I issued the PIP to complainant
because she had concerns about complainant's efficiency, timeliness
and judgment. With respect to allegation 3, RMO I did not consider her
statement a reprimand, but rather, she sought to inform complainant that
termination was one possibility among others. With respect to allegation
4, the termination letter was issued because management believed that
complainant was not able to perform consistently as a writer/editor or
meet the standards required by the agency, despite approximately eleven
months of orientation, feedback, on the job training and work.
Since the agency articulated legitimate, nondiscriminatory reasons
for its actions, the burden returns to the complainant to demonstrate
that the agency's articulated reasons were pretext for discrimination.
Complainant contends that RMO I's motive for having him dismissed
from his position was related to 1) his raising the issue of the lunch
break policy, 2) his compliance with the policy, 3) the staff's lack
of compliance with the policy, and 4) RMO I's lack of compliance with
the policy. Complainant argues that management did not raise concerns
about his performance until more than ten (10) months after he had been
in the position and only after the lunch break incident. However, the
record indicates that, after nearly a year of training and supervision,
management determined that complainant, a probationary employee, was
unable to fulfill the requirements of his position. We note, for example,
that one management official (RMO IV), who was not involved in the lunch
break incident, found that complainant introduced fundamental problems
into a document he was editing. We find that complainant has failed to
provide sufficient evidence to show that the agency acted on the basis
of sex or reprisal discrimination.
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 (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
_07-27-01_________________
Date