Ronald T. McCollum, Complainant,v.Lawrence H. Summers, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.

Equal Employment Opportunity CommissionSep 27, 2000
01986633 (E.E.O.C. Sep. 27, 2000)

01986633

09-27-2000

Ronald T. McCollum, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.


Ronald T. McCollum v. Department of the Treasury

01986633

September 27, 2000

.

Ronald T. McCollum,

Complainant,

v.

Lawrence H. Summers,

Secretary,

Department of the Treasury,

(Internal Revenue Service),

Agency.

Appeal No. 01986633

Agency No. TD-98-1017

DECISION

Complainant timely initiated an appeal from a final agency decision

concerning his complaint of unlawful employment discrimination in

violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq.<1> The appeal is accepted pursuant to 29

C.F.R. �1614.405. For the following reasons, the final agency decision

is AFFIRMED.

The issue presented herein is whether complainant has proved, by

preponderant evidence, that he was discriminated against on the bases

of race (Black) and reprisal (prior EEO activity).

Complainant, currently employed by the agency as a Telephone Group

Supervisor, E.A.D.C., Grade 5, filed a formal complaint on October 17,

1997, in which he alleged what has been identified as the issue presented

when, on June 19, 1997, he became aware that he received a lower rating on

his performance appraisal than he received the previous year. The agency

accepted the complaint for processing and investigated the matter.

At the conclusion of the investigation, complainant requested a final

agency decision without a hearing. The agency issued a final decision

finding no discrimination.

In the absence of direct evidence of discrimination, the allocation of

burdens and order of presentation of proof in a Title VII case alleging

discrimination is a three-step process. McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-803 (1973); see, Hochstadt v. Worcestor Foundation

for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),

aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to

retaliation cases). First, complainant must 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. Next, the agency must articulate a

legitimate, nondiscriminatory reason(s) for its actions. Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency

is successful, then the complainant must prove, by a preponderance of

the evidence, that the legitimate reason(s) proffered by the agency was

a pretext for discrimination. Id. at 256.

Although the initial inquiry of discrimination usually focuses on whether

the complainant has established a prima facie case, following this order

of analysis is unnecessary when the agency has articulated a legitimate,

nondiscriminatory reason for its actions. See Washington v. Department

of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In such cases,

the inquiry shifts from whether the complainant has established a prima

facie case to whether s/he has demonstrated by preponderance of the

evidence that the agency's reasons for its actions merely were a pretext

for discrimination. Id.; see also United States Postal Service Board of

Governors v. Aikens, 460 U.S. 711, 714-717 (1983). In this case, we find

that the agency did articulate legitimate, nondiscriminatory reasons for

its actions. Specifically, complainant's supervisor, the person charged

with evaluating complainant's performance, stated that his performance

had declined under her supervision since she first became his manager.

She also stated that complainant was not a self-starter and had to be

given tasks with specific assignments and direction to perform them.

The agency also provided a copy of the performance appraisal. In it,

complainant's supervisor wrote that although complainant worked closely

with the Reports Clerk to identify potential errors, he failed to take

appropriate action for correction or adjustment.

Because the agency has proffered a legitimate, nondiscriminatory

reason for the alleged discriminatory events, complainant now bears

the burden of establishing that the agency's stated reason is merely a

pretext for discrimination. Shapiro v. Social Security Administration,

EEOC Request No. 05960403 (December 6, 1996). Complainant can do this

by showing that the agency was motivated by a discriminatory reason.

Id. (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)).

In this case, complainant has failed to meet that burden. In attempting

to prove that the agency's action was a pretext for discrimination,

complainant presented no evidence tending to prove that the agency's

stated reason was a pretext for discrimination. For that reason, we

hereby AFFIRM the final agency decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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

September 27, 2000

__________________

Date

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply

to all federal sector EEO complaints pending at any stage in the

administrative process. The regulations, as amended, may also be found

at the Commission's website at www.eeoc.gov.