0120090437
03-26-2009
Richard T. Jones, Complainant, v. Paul Prouty, Acting Administrator, General Services Administration, Agency.
Richard T. Jones,
Complainant,
v.
Paul Prouty,
Acting Administrator,
General Services Administration,
Agency.
Appeal No. 0120090437
Agency No. 06C0FSSRJ-1
Hearing No. 570-2007-00402X
DECISION
Complainant filed an appeal with this Commission concerning his complaint
of unlawful employment discrimination. Complainant alleges discrimination
on the bases of race (African-American), color (black), sex (male), and
age (42) when on May 24, 2006, complainant was denied a career ladder
promotion in his position as Program Analyst to the GS-12 grade level.
Following a hearing, an EEOC Administrative Judge (AJ) issued a decision
on September 11, 2008, finding that complainant had not been discriminated
against. Specifically, the AJ found that the agency presented legitimate,
nondiscriminatory reasons for its actions, which complainant failed
to rebut. On September 24, 2008, the agency, fully implementing the
AJ's decision, issued a decision finding no discrimination. Thereafter,
complainant filed the instant appeal.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
We find that the agency articulated a legitimate, nondiscriminatory
reason for not promoting complainant to the GS-12 grade level.
Complainant stated that he believed he was performing above the GS-11
grade level. According to complainant, he was one of the best writers on
the staff and had produced written products for staff members who were
GS-12 and GS-13 Program Analysts. Complainant argued that he believed
that the Director of Contract Operations Division, complainant's first
line supervisor (Supervisor A), the Acting Assistant Commissioner for
Commercial Acquisition, complainant's third line supervisor (Supervisor
B), and the Director of Business Management Division, complainant's
second line supervisor (Supervisor C), were discriminating against
him by refusing to promote him. Supervisors A, B and C testified
that complainant was not promoted to the GS-12 grade level because
complainant had not achieved the level of performance necessary for
a career-ladder promotion. Complainant first became eligible in June
2005. Supervisors A and B stated that they advised complainant that,
to improve his performance, he needed to "move beyond collecting data
and begin a thorough analysis of the data." Specifically, Supervisor
B asserted that, in his observation, complainant's performance had been
"very shallow" as he "attempted to resolve issues without doing the
research to understand all the aspects and without working with all the
stakeholders and gathering all the information needed." Supervisor B
claimed that, during complainant's May 2005 mid-year evaluation, he told
complainant that he "needed to meet with each of the program managers
in Contract Management, understand their project, and discuss how to
address the project in the budget and business plans." Supervisors A
and B reported that they informed complainant that he needed to improve
his performance for a consistent three to six month period before the
possibility of a promotion would be broached.
On November 7, 2005, the next juncture at which complainant's work
performance was reviewed, Supervisor C issued complainant a rating
of "2" as she determined that complainant was not performing at a
successful level. Specifically, Supervisor C stated that complainant
had not performed on a project involving data collection. Supervisor C
claimed that, although complainant collected and compiled the information,
it was not in a consistent format, and complainant had not undertaken
the necessary critical thinking to transform the information into a
usable product. Supervisor C asserted that complainant needed to be more
"proactive with his assignments," meaning that she expected complainant
to conduct more follow-up, seek clarification, and provide status updates
on larger projects to ensure that they were "on the right track."
On May 24, 2006, the next juncture at which complainant's work performance
was reviewed, Supervisor C issued complainant an unfavorable mid-year
rating. Supervisor C asserted that, although she acknowledged some
improvement in complainant's performance, he still needed to be more
proactive and "take ownership" of his assignments, learn more about the
reorganization, and facilitate rotational assignments that would help
him learn more about the programs. Specifically, Supervisor C claimed
that complainant "tends to attempt to cover a topic so broadly that
his effectiveness is diluted" and that complainant needed to "limit his
focus to manageable pieces of the project so he could thoroughly cover
each area before moving on to the next."
Importantly, Supervisor C said that "[p]erformance at the GS-12 level
requires coordinating and facilitating project teams to ensure timely,
effective, and efficient program implementation and project management,
and facilitating effective action planning processes." Supervisor C
stated that performance at the GS-12 level requires that the employee
"independently plan and carry out the assignments and resolve most
conflicts as they arise, so that completed work is reviewed only for
conformance to policy, coordination, and overall effectiveness." Finally,
Supervisor C claimed that, during the time complainant reported to her,
she "did not observe him performing at this level."
On November 15, 2006, the next juncture at which complainant's work
performance was reviewed, Supervisor A issued complainant a rating of
"3." Supervisor A stated complainant was "doing better," but further
improvement was needed. Specifically, Supervisor A asserted that she
advised complainant that, to improve his performance, he needed to
"ask questions and seek clarification from others and from [Supervisor
A], perform a more thorough analysis of data, and be proactive in his
analysis by educating himself to better understand the issue." Supervisor
A claimed that she further advised complainant that critical thinking
was necessary to determine outcome results.
The Commission finds that complainant failed to rebut the agency's
articulated legitimate, nondiscriminatory reasons for the promotion
decision. Complainant failed to show, by a preponderance of the evidence,
that he was discriminated against on the bases of race, color, sex or age.
The AJ's decision is supported by substantial evidence.
The agency's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
March 26, 2009
__________________
Date
2
0120090437
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013