0120093195
06-17-2011
Morgan R. Deane, Jr., Complainant, v. Ken L. Salazar, Secretary, Department of the Interior (U.S. Geological Survey), Agency.
Morgan R. Deane, Jr.,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior
(U.S. Geological Survey),
Agency.
Appeal No. 0120093195
Agency No. USGS-08-0422
DECISION
Complainant timely filed an appeal from the Agency’s June 17, 2009,
final decision concerning his equal employment opportunity (EEO) complaint
alleging 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 Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a).
For the following reasons, the Commission AFFIRMS the Agency’s final
decision.
ISSUE PRESENTED
The issue presented is whether the Agency properly found that Complainant
had not established that he was subjected to race discrimination when
it issued him a letter of termination, which resulted in Complainant’s
resignation and alleged constructive discharge from the Agency.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a GS-14 Support Services Supervisor and Chief of Management Services
in the Agency’s Denver, Colorado facility. Complainant began his
employment with the Agency on February 11, 2008. On July 25, 2008,
the Agency issued Complainant a letter of termination on the basis that
Complainant failed to demonstrate appropriate conduct and fitness for
continued federal employment. After receiving the termination letter,
Complainant resigned on July 25, 2008.
On September 9, 2008, Complainant filed an EEO complaint alleging that the
Agency discriminated against him on the basis of race (African-American)
when, in a letter dated July 25, 2008, Complainant received notice that
he was terminated from employment with the Agency during his probationary
period, which culminated in his resignation and constructive discharge
effective July 25, 2008.
In an investigative interview, Complainant testified that his supervisor
(S1) hired him. Complainant stated that he was never counseled about his
performance, and when he was informed of his termination he resigned so
that a termination would not go on his record. Complainant stated that
the letter of termination stated that he was terminated for five reasons:
1) the unauthorized entry into S1’s office; 2) an unauthorized meeting
with a potential contractor regarding a lease contract; 3) a proposed
budget change to the regional director’s budget; 4) failing to pay his
government credit card in a timely manner on two occasions; and 5) using
the Agency’s cellular telephone for personal business. Exhibit F2.
Complainant further stated that S1 gave him a key to her office for
emergency situations. He stated that on one occasion when S1 was
absent, he was going to a conference for a week and wanted to make sure
S1 received a contract solicitation that was of a sensitive nature.
Complainant stated that S1’s secretary (the Secretary) told him that
S1 did not want anyone to go into S1’s office, but he responded that
S1 told him that he was given the key to her office “if we really need
to get in there.” Complainant stated that he then walked into S1’s
office, placed a document on her desk, and locked the office.
Complainant further stated that he set up an informational meeting with
contractors to determine their readiness in meeting the requirements of a
lease. Complainant stated that he sent an invitation to the contractors
to attend the meeting. He stated that when S1 received a copy of the
invitation, she informed Complainant that she was concerned, but after
Complainant explained to her that the purpose of the meeting was just to
obtain information form the contractors, S1 told her to “go ahead”
with the meeting. He stated that S1 subsequently canceled the meeting.
Complainant stated that he was never informed that the contract was
still under the protest period when he scheduled the meeting.
Complainant also stated that he did not propose a budget change, but he
discussed budget challenges with the Budget Officer. He stated that
he told the Budget Officer that he wanted to quantify environmental
risks in the field because the Agency had liability problems, which
may have meant that the Agency had to change its budget in the future.
Complainant stated that during the meeting, he did not authorize a budget
change or say that the Agency needed to change its environmental budget.
Complainant stated that after the meeting, S1 directed him not to discuss
potential budget changes with the Budget Officer.
Complainant further stated that he paid his government credit cards bill
over 30 days late on two occasions because of his wife’s oversight and
confusion over the due dates. Complainant stated that he occasionally
talked to family members on his government cellular telephone, but was
never told that he could not use the telephone for personal use.
S1 (Caucasian) testified that she is the Chief of Office of Regional
Services and was aware of Complainant’s race when she hired him.
Exhibit F3. S1 stated that she issued Complainant the letter of
termination because she determined that his conduct was unfit for
a federal manager. S1 further stated that she verbally counseled
Complainant after each incident cited in his termination letter as a
basis for his removal. S1 stated that she did not instruct Complainant
about whether he could or could not enter her office, but she expected
a manager to exercise sound judgment and conclude that a “locked door
is locked for a purpose and honor that locked door and not gain entry.”
Exhibit F3, p. 9. S1 stated that she did not give Complainant a key that
specifically opened her office, but he had a key that opened his office,
S1’s office, and another office. S1 stated that her Administrative
Officer informed her that she expressly warned Complainant not to enter
into S1’s office, but Complainant nonetheless entered S1’s office.
S1 stated that as a regional security officer, Complainant should have
called S1 and requested entrance to her office.
S1 further stated that she was shocked to learn that Complainant invited
a contractor to attend a contract kickoff meeting, although an Agency
employee warned him not to do so, and the Agency was awaiting the
legal review and return of the lease contract so that they could fully
execute it. She stated that Complainant should have known through his
experience dealing with other contracts that a contractor should not
come to a meeting when there is no fully-executed contract.
S1 also stated that on June 9, 2008, Complainant informed her that he had
introduced himself to the Budget Officer and proposed that she redirect
the environmental remediation compliance funds. She further stated that
later that day, the Budget Officer mentioned Complainant’s proposal,
to which S1 objected. S1 stated that she subsequently sent an e-mail to
Complainant directing him not to suggest or propose budget redirections
to the regional director’s office without first vetting it through her.
S1 stated that Complainant’s May 2008 government cellular telephone
statement reflected that he incurred overuse charges of $3.54 and made
79 personal calls out of 124 total calls. She stated that although
employees are allowed to incidentally use government cellular telephones
for personal use, Agency policy forbids employees from incurring overuse
charges because the Agency has a flat-rate billing plan.
S1 further stated that Complainant still had not paid his government
credit card balances after he was made aware of the past due balances.
She stated that she sent e-mailed Complainant about he delinquency
reports, but she received credit card statements in August and September
2008 indicating that he had not paid off the credit card. S1 stated
that Complainant received required credit card training that informed
him that credit card balances must be timely paid.
The Administrative Officer (Caucasian) stated that S1 does not allow
anyone to enter into her office when the door is locked. Exhibit F5.
She stated that she told Complainant on May 15, 2008, that S1 did not
want anyone to enter her office and had papers in her office that she
did not want anyone to see, but Complainant told her that he had a key
to the office.
The Budget Officer (Caucasian) stated that she recalled discussing
the possible redirection of funds with Complainant, but she would not
characterize her discussion with him as a formal conversation. Exhibits
F7 and F8. She further stated that she did not regard Complainant’s
conversation as a budget proposal or change and was chagrined to learn
that her conversation with Complainant was cited as a rationale for
his termination.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of his right to
request a hearing before an EEOC Administrative Judge (AJ). In accordance
with Complainant’s request, the Agency issued a final decision pursuant
to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant
failed to prove that the Agency subjected him to discrimination as
alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant maintains that the Agency improperly found no
discrimination. Complainant maintains that his alleged misconduct
was “miscommunication at best.” Complainant’s Brief, p. 3.
He further contends that under agency policy, charge card delinquencies
should not result in discipline until the payment is at least 60 days
delinquent, but he was only delinquent by 30 days on two occasions.
Complainant further maintains that agency policy allows employees to
make three 10-minute calls on government cellular telephones per day.
The Agency requests that we affirm its final decision.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de
novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at Chap. 9, § VI.A. (Nov. 9, 1999) (explaining that the de novo
standard of review “requires that the Commission examine the record
without regard to the factual and legal determinations of the previous
decision maker,” and that EEOC “review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission’s
own assessment of the record and its interpretation of the law”).
ANALYSIS AND FINDINGS
Generally, claims of disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental
Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222
(1st Cir. 1976). 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
Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). For instance, to
establish a prima facie case of reprisal, Complainant must show that
(1) he engaged in protected EEO activity; (2) the Agency was aware of
the protected activity; (3) subsequently, he was subjected to adverse
treatment by the Agency; and (4) a nexus exists between his protected
activity and the adverse treatment. Whitmire v. Dep’t of the Air Force,
EEOC Appeal No. 01A00340 (Sept. 25, 2000).
Once a complainant has established a prima facie case, the burden
of production then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Dep’t of Com. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the
burden reverts back to Complainant to demonstrate by a preponderance
of the evidence that the Agency’s reason(s) for its action was a
pretext for discrimination. At all times, Complainant retains the burden
of persuasion, and it is his obligation to show 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, 509 (1993);
U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983).
Constructive discharge occurs when an employee resigns from his employment
because he is being subjected to unlawful employment practices. If the
resignation is directly related to the Agency's unlawful employment
practices, it is a foreseeable consequence of those practices and
constitutes a constructive discharge. The Agency is responsible for a
constructive discharge in the same manner that it is responsible for
the outright discriminatory discharge of a charging party. In order
to establish that he was constructively discharged from his position,
Complainant must show: (1) that his resignation resulted from the agency's
actions; (2) that the agency's actions were discriminatory; and (3)
that a reasonable person in his situation would have found the agency's
actions intolerable. See Malpass v. Dep’t of Veterans Affairs, EEOC
Request No. 05920527 (July 20, 1992). Therefore, in order to establish
that he was constructively discharged, a complainant must show that the
agency's actions were discriminatory.
Upon review of this case, we find that Complainant failed to establish a
prima facie inference of race discrimination. In so finding, we note that
Complainant failed to show that similarly situated non-Black employees
were treated more favorably under similar circumstances, or any other
evidence from which an inference of race discrimination could be drawn.
Further, we find that the Agency provided legitimate, non-discriminatory
reasons for its actions. Specifically, management stated that it
issued Complainant a letter of termination during his probationary
period because of his unauthorized entry into S1’s office; he met with
a potential contractor regarding a lease contract without authorization;
he proposed a budget change to the regional director’s budget; he failed
to pay his government credit card in a timely manner on two occasions;
and he used the Agency’s cellular telephone for personal business.
Complainant argues that his alleged misconduct was merely the result
of miscommunication, and that Agency policy did not require the Agency
to discipline him for his actions. However, Complainant acknowledged
that he was informed by the Administrative Officer that S1 did not want
anyone to enter his office, yet he entered S1’s office. Further,
although Complainant maintains that Agency policy allowed him to make
three personal calls of up to 10 minutes per day, the policy did not
allow for employees to incur overuse charges on Agency telephones,
as Complainant did. Complainant further contends that he was treated
differently than other Branch Chiefs, but he has not shown that they
engaged in the type of conduct cited as the basis for his termination.
Although Complainant contends that he was not counseled or discipline
for his alleged misconduct before he was issued the termination letter,
he does not deny that he incurred an overcharge on the government
telephone; entered S1’s office after being instructed not to do so by
her Administrative Officer; and failed to pay his government credit card
bill in a timely manner on two occasions. We note that agencies have
greater discretion to remove an employee during their probationary period
than they do in removing a career employee. See Pittman v. U.S. Postal
Serv, EEOC Appeal No. 01840334 (Apr. 4, 1986).
Further, while reasonable persons may disagree about the gravity of
Complainant’s conduct, disagreement over the Agency's business decisions
does not constitute evidence that the Agency's decisions were motivated
by discriminatory animus. Without proof of a demonstrably discriminatory
motive, we will not second-guess an agency's personnel decisions. See,
e.g., Chavez v. U.S. Postal Serv., EEOC Appeal No. 0120055246 (Jan. 5,
2007); see also Carson v. Bethlehem Steel Corp., 82 F.3d 157, 159 (7th
Cir. 1982) (noting that “the question is not whether the employer
made the best, or even a sound, business decision; it is whether the
real reason [was discriminatory]”). We find that Complainant failed
to prove that the Agency’s explanations were pretext for unlawful
discrimination. In so finding, we note that Complainant’s claim that
S1 was motivated by race discrimination is greatly undermined by the
fact that S1 hired Complainant with knowledge of his race. As such,
Complainant cannot prevail on his claim that his resignation was the
result of a discriminatory constructive discharge.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the final
agency decision for the reasons set forth in this decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 9-18 (Nov. 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
June 17, 2011
Date
2
0120093195
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120093195