03a10040
02-16-2001
Michael Harris, Petitioner, v. John W. Carlin, Archivist, National Archives and Records Administration, Agency.
Michael Harris v. National Archives and Records Administration
03A10040
February 16, 2001
.
Michael Harris,
Petitioner,
v.
John W. Carlin,
Archivist,
National Archives and Records Administration,
Agency.
Petition No. 03A10040
MSPB Docket No. CH-0432-99-0306-I-1
DECISION
INTRODUCTION
On December 26, 2000, Michael Harris (petitioner) timely filed a petition
with the Equal Employment Opportunity Commission (the Commission) for
review of the final order of the Merit Systems Protection Board (MSPB)
issued November 24, 2000, concerning his allegations of
discrimination based on race (African-American) and sex (male) in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. The petition is governed by 29 C.F.R. �
1614.303 et seq. The MSPB found that the agency had not engaged in
discrimination as alleged by petitioner. For the reasons that follow,
the Commission concurs with the decision of the MSPB.
ISSUE PRESENTED
The issue presented is whether the MSPB's determination that petitioner
failed to prove that the agency discriminated him based on race and
sex when it demoted him from a grade four position to a grade three
position constitutes a correct interpretation of the applicable laws,
rules, regulations, and policy directives and is supported by the record
as a whole.
BACKGROUND
According to the record, petitioner was an Archives Technician
(Technician), GS-4, with the agency. On April 4, 1997, the agency issued
petitioner a Notice of Proposed Reduction-in-grade and Reassignment for
failure to consistently perform at an acceptable level. On May 8, 1997,
the deciding official sustained the Notice of Proposed Reduction-in-grade
and Reassignment and; effective May 11, 1997, petitioner was reduced
from a Technician, GS-4, position to an Archives Aid, GS-3, position
and assigned to a different section in the same office. Believing he
was a victim of discrimination, petitioner sought EEO counseling, and,
subsequently, filed a mixed case complaint<1> alleging that the agency
discriminated against him based on race (African-American) and sex (male).
As provided by 29 C.F.R. � 1614.302(d)(1)(i), petitioner subsequently
filed an appeal on the same matter with the MSPB prior to the agency
issuing a final decision.
Petitioner stated that a similarly situated white male and a (race
unknown) female employee (comparators) who also had production problems
were not reduced in grade but instead were reassigned to other offices in
the agency. He stated further that he did not know that his performance,
during the period at issue, was �on standard;<2>� that he was given both
GS-3 and GS-4 work although he was �on standard� for GS-3 work;<3> and
that reassignment to a different office would have been more appropriate
than a reduction-in-grade.
The agency stated that petitioner had four wage-in-grade denials in four
years due to poor performance appraisals, was placed on a Performance
Improvement Plan (PIP) after he received an �Unacceptable� performance
appraisal rating, received a �Fully Successful� rating while on the PIP
but almost immediately fell to an �Unacceptable� performance rating for
seven months.<4> Summarily, the agency stated that petitioner could
not consistently meet his required grade standard as clearly expressed
to him.
After an MSPB hearing on the matter, an Administrative Judge (AJ) issued
an initial decision finding that petitioner failed to establish a prima
facie case of discrimination based on race or sex when he did not show
that a similarly situated individual outside of his protected class was
treated differently. The AJ further found that, assuming that petitioner
did establish a prima facie case,
he failed to establish that the legitimate, nondiscriminatory reason
articulated by the agency was pretextual. The AJ affirmed the agency's
action. Petitioner subsequently filed a petition for review to the
Board, which was inconclusive<5> rendering the initial decision the
final decision of the MSPB. This petition to the Commission followed.
ANALYSIS AND FINDINGS
The Commission must determine whether the decision of the MSPB with
respect to the allegation of discrimination based on race and sex
constitutes a correct interpretation of any applicable law, rule,
regulation or policy directive and whether said decision is supported
by the evidence in the record as a whole. 29 C.F.R. � 1614.305(c).
When a petitioner relies on circumstantial evidence to prove an agency's
discriminatory intent or motive, there is a three step, burden-shifting
process. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
The initial burden is on the petitioner to establish a prima facie
case of discrimination. Id. at 802. The burden then shifts to the
agency to articulate some legitimate, nondiscriminatory reason for its
challenged action. Id. If the agency is successful, the petitioner
must then prove, by a preponderance of the evidence, that the legitimate,
nondiscriminatory reason articulated by the agency is merely pretext
for discrimination. McDonnell Douglas, 411 U.S. at 804.
Because the agency articulated a legitimate, nondiscriminatory reason
for its action ( i.e., petitioner failed to consistently meet his grade
standard), we may proceed directly to determining whether petitioner
satisfied his burden for showing pretext. Haas v. Department of Commerce,
EEOC Request No. 05970837 (July 7, 1999)(citing U.S. Postal Service
Board v. Aikens, 460 U.S. 711, 713-14 (1983)). Petitioner may do this
in one of two ways, either directly, by showing that a discriminatory
reason more likely motivated the agency, or indirectly, by showing that
the agency's proffered explanation is unworthy of credence. Texas Dep't
of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). Essentially,
the fact finder must be persuaded by the petitioner that the agency's
articulated reason was false and that its real reason was discriminatory.
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515 (1993).
Petitioner argued that the agency reassigned comparators but that it
did not do the same for him. Thus, he stated, the agency's reason was
pretextual.
Based on the record, petitioner did not show that a similarly situated
employee outside of his race or sex was treated more favorably than he
or that an inference of discrimination based on race or sex existed<6>.
Regarding the former, petitioner and his male comparator had different
performance histories<7> and the record is void of evidence regarding a
female comparator. In addition, he did not show that the legitimate,
nondiscriminatory reason articulated by the agency was pretextual.
Petitioner failed to prove discrimination based on race or sex.
CONCLUSION
Based upon a thorough review of the record and for the foregoing reasons,
it is the decision of the Commission to CONCUR with the final decision
of the MSPB finding no discrimination. The Commission finds that the
Board's decision constitutes a correct interpretation of the laws, rules,
regulations, and policies governing this matter and is supported by the
evidence in the record as a whole.
STATEMENT OF PETITIONER'S RIGHTS
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court,
based on the decision of the Merit Systems Protection Board, within
thirty (30) calendar days of 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.
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 16, 2001
__________________
Date
1A mixed case complaint is a complaint of
employment discrimination filed with a Federal agency based on race,
color, religion, sex, national origin, age or disability related to
or stemming from an action that can be appealed to the Merit Systems
Protection Board (MSPB). 29 C.F.R. � 1614.302.
2Based on the record, the productivity performance of an employee is �on
standard� when the employee's average time to complete tasks is compared
to an established standard time to complete the same tasks. Conversely,
the productivity performance of an employee is �off standard� if no such
comparison is made.
3Petitioner stated that GS-3 work is simpler but requires greater
productivity, which is difficult to achieve when GS-4 work is mixed in
with it.
4The agency issued petitioner a letter, dated August 7, 1996, ending
the PIP and indicating that petitioner could be subject to reassignment,
change to a lower grade or removal if he failed to maintain a �Minimally
Satisfactory� performance level until April 24, 1997.
5The two Board members could not agree on the disposition of the petition
for review so they issued separate opinions. Their opinions primarily
deal with whether the agency's action should have been a reduction
in force as opposed to a demotion. The opinions do not address
discrimination issues.
6See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 311-12
(1996).
7Over a four year period, the agency consistently observed petitioner
meet his performance standards to attain a short-term goal, e.g., a PIP,
and then soon thereafter perform poorly.