0120082228
09-04-2009
Roland A. Dobson, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Roland A. Dobson,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120082228
Hearing No. 430-2007-00273X
Agency No. 06-40442-01713
DECISION
On April 10, 2008, complainant filed an appeal from the agency's March 14,
2008 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 appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final decision.
ISSUE PRESENTED
Whether the agency properly found that complainant was not subjected
to discrimination on the bases of race, color, sex, or reprisal with
respect to various personnel actions pertaining to time and attendance
and alleged performance deficiencies.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Human Resources Specialist, GS-11, at the Military Sealift Fleet Support
Command in Virginia Beach, Virginia. On August 23, 2006, complainant
filed an EEO complaint alleging that he was discriminated against on
the bases of race (Black), sex (male), color (light complexion), and in
reprisal for prior protected EEO activity when:
1. On June 23, 2006, the agency issued complainant a notice of
unacceptable performance and placed him on a 45-day Performance
Improvement Plan (PIP);
2. On August 14, 2006, management denied complainant's request for 3.5
hours of compensatory time and 1.5 hours of annual leave;
3. On October 5 and 6, 2006, the agency denied complainant eight hours
of properly documented sick leave;
4. On November 21, 2006, the agency denied complainant 3.5 hours of
properly documented sick leave;
5. On December 21, 2006, the agency issued complainant a decision on a
notice of proposed suspension;
6. In February 2006, the agency issued complainant a letter of
requirement;
7. On December 2005, the agency denied complainant sick leave; and,
8. On August 2005, the agency issued complainant a letter of caution.
In a letter dated October 16, 2006, the agency dismissed claims 6 - 7 on
the basis that they were initiated by untimely EEO counselor contact.1
The agency accepted claims 1 - 5 for investigation.
In a deposition statement, complainant's immediate supervisor (S1) stated
that she did not have any problems with complainant's performance until
his previous division merged with the Recruitment Division in July 2005.
She stated that complainant's performance deteriorated after the merger,
and she would talk to him when she observed problems with his performance,
but complainant was defensive and would not listen to her input.
She stated that in July 2005, she issued complainant a letter of
caution for inattention to duty because he erroneously advised seven
Civilian Mariners (CIVMARS) that they were ineligible for promotion.
S1 stated that after discussing complainant's situation with management,
she contacted a Human Resources Specialist for advice on how to address
complainant's ongoing performance issues. S1 stated that the Human
Resources Specialist advised her to place complainant on a PIP for
a couple of months in order to try to improve his performance, but
complainant's performance did not improve.
Additionally, S1 stated that she issued complainant a notice of
unacceptable performance and placed him on a PIP because complainant
did not complete a selection register in a timely manner. She further
stated that complainant failed to properly save a permanent promotion
in the Human Resources Maintenance System (HRMS); complainant failed
to make necessary changes to a position announcement that was posted
on the shared computer drive; complainant failed to use the standard
format in an email announcing the result of the evaluation of the
ship's Communication Office and the Chief Radio Electronics Technician;
complainant disclosed the last four digits of employees' Social Security
Numbers on the internet; and, complainant prepared a third officer merit
promotion announcement with incorrect salary and command information.
S1 stated that she has not observed other specialists making the same
types of mistakes complainant made. She stated that complainant's mistakes
were so frequent and vivid that they became a reflection on her and
the office, and other employees had to correct complainant's mistakes.
S1 stated that she had weekly Friday meetings with complainant to discuss
his performance, but complainant would state that he had everything
under control when she asked him if he needed any help.
S1 stated that complainant was denied leave, on August 15, 2006, because
he failed to notify management of his absence as he was directed to do in
a February 9, 2006 letter of requirement. S1 indicated that she issued
complainant the letter of requirement because complainant continuously
took time off work. S1 stated that complainant was denied leave on
October 5, 2006 because he did not obtain approval beforehand by speaking
to his supervisors. S1 further stated that complainant was denied leave
on November 21, 2006, because although complainant came to work late,
he did not call his supervisors beforehand to obtain approval for leave.
According to S1, in December 2006, she issued complainant the letter of
proposed suspension because complainant was "totally disrespecting" her by
not abiding by the leave procedure outlined in the letter of requirement.
S1's Deposition, p. 210.
Complainant's second-line supervisor (S2) stated that complainant
was placed on a PIP because he had been issued a letter of caution for
inattention to detail but continued to "make mistake after mistake after
mistake after mistake" that "bordered on ridiculous." S2's Deposition,
p. 5. S2 stated that every promotion or selection register prepared
by complainant that she inspected was incomplete, which reflected an
inattention to detail. S2 also stated that complainant posted portions
of employee social security numbers on the agency website and often did
not use the proper template for vacancy announcements. "[Complainant]
feels that, you know, they're just little mistakes. It's just a little
mistake, and it's just a little mistake after mistake after mistake after
mistake. Had we been audited at the time, our records were a disaster,"
she stated. Deposition, p. 7.
S2 further stated that the other specialist also made errors, but the
other specialist did not make mistakes on a regular basis. Deposition,
p. 8. "You can't beat somebody up if they make a mistake here or there,
but when it gets to the point where there's such a regular pattern of
inattention to detail and information going out that's incorrect, I mean,
you just can't ignore it, and that's how we got to this point with
the PIP with [complainant]," S2 stated. Deposition, p. 29. S2 stated
that during complainant's PIP period, S1 met with complainant weekly to
discuss his performance and provide feedback, but complainant did not
improve during the PIP period.
Additionally, S2 stated that complainant generally "would just not come
to work." Deposition, p. 37. She stated that because of complainant's
abuse of sick leave, he was issued a letter of requirement that stated
that he had to personally speak to his supervisors when he could not
come to work and provide medical documentation justifying the leave.
She stated that she issued complainant a proposed five-day suspension
because of his attendance problems and failure to use proper procedure
for requesting leave.
At the conclusion of the investigation of complainant's claims,
complainant was provided with a copy of the report of investigation and
notice of his right to request a hearing before an EEOC Administrative
Judge (AJ). Complainant requested a hearing, but the AJ denied the
hearing request on the grounds that complainant failed to comply with
the AJ's order. The AJ remanded the complaint to the agency, and the
agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The decision concluded that complainant failed to prove that he was
subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant maintains that the agency improperly found no
discrimination because the PIP did not explain the standards that he
needed to meet; the agency failed to assist or monitor him during the
PIP period; the agency gave him a within-grade increase (WIGI) less than
two months after placing him on the PIP; and, the agency scrutinized
his work more closely than other employees who made similar errors.
Complainant further contends that he provided the requested documentation
for sick leave. The agency requests that we affirm its final decision.
ANALYSIS AND FINDINGS
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 EEOC Management
Directive 110, Chapter 9, � VI.A. (November 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").
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. 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). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Assuming arguendo that complainant established a prima facie case of
reprisal and discrimination, we nonetheless find that the agency provided
legitimate, non-discriminatory reasons for its actions, as detailed above.
On appeal, complainant argues that the PIP did not explain the standards
that he needed to meet; the agency failed to assist or monitor him during
the PIP period; the agency gave him a within-grade increase (WIGI) less
than two months after placing him on the PIP; and, the agency scrutinized
his work more closely than other employees who made similar errors.
However, upon review, we note that the notice of unacceptable performance
that accompanied the PIP specified in detail how complainant's performance
was deficient in several critical elements. Complainant contends that
management did not assist him during the PIP period, but S2 corroborated
S1's assertion that she met with complainant on a weekly basis to provide
feedback on complainant's performance. Moreover, in his investigative
statement, complainant acknowledged that S1 met with him three times,
criticized everything he did, told complainant that he was "inattentive
to detail," and only provided negative criticism about his work. We also
find unpersuasive complainant's contention that the agency's explanations
are undermined by the fact that he received a WIGI two months after the
agency placed him on a PIP. Management stated that although the agency
tried to prevent the issuance of the WIGI to complainant, a computer
system glitch automatically gave complainant a WIGI.
Complainant further argues that management scrutinized his work more
closely than other employees; however, complainant has not shown
that other employees made the type of mistakes he did or made them
as frequently. Finally, complainant contends that he provided proper
medical documentation to management to support his leave requests.
Nevertheless, complainant failed to show that he directly spoke with
his supervisors before taking leave in accordance with the letter
of requirement. Consequently, we conclude that complainant failed to
prove that the agency's non-discriminatory explanations were pretext for
unlawful discrimination. Thus, we find that the agency properly found
no discrimination.
CONCLUSION
After a review of the record in its entirety, it is the decision of the
Equal Employment Opportunity Commission to affirm the agency's final
decision because the preponderance of the evidence of record does not
establish that discrimination occurred.
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
__________9-04-09________
Date
1 Because complainant does not challenge the dismissal of claims 6 -
8 on appeal, we decline to review these dismissals.
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0120082228
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120082228