0120080717
07-16-2009
Stephen Dixon, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, Agency.
Stephen Dixon,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
Agency.
Appeal No. 0120080717
Hearing No. 461-2006-00036X
Agency No. P-2005-0257
DECISION
On November 20, 2007, complainant filed an appeal from the agency's
October 22, 2007 final action 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.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Supervisory Correctional Officer, Lieutenant, (GS-11) at the agency's
work facility in Pollock, Louisiana.
On July 7, 2005, complainant filed an EEO complaint wherein he claimed
that he was discriminated against on the basis of race (Caucasian)
when:
1. Agency officials gave complainant unfavorable vouchers1 for eight
positions for which complainant had applied during the period of February
17, 2005 - June 17, 2005.
2. On February 2, 2005, complainant was assigned for the second
consecutive quarter as the P.M. Activities Lieutenant, a position
generally assigned to GS-9 Lieutenants/ Correctional Officers.
3. On January 31, 2005, complainant was not permitted to work overtime.
4. On July 29, 2005, complainant's overtime was canceled.
5. On August 2, 2005, the Captain adjusted the roster so that Black
staff could work overtime.
The agency also dismissed three other claims of race discrimination
set forth in the complaint. Complainant had claimed that he received an
unfavorable recommendation as to six Lieutenant positions that were filled
during the period of February 1, 2005 - June 20, 2005. Additionally,
complainant claimed that in February 2005, other staff questioned a roster
adjustment he had made. These claims were dismissed on the grounds
of failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
Complainant also claimed that that he was not selected and received
negative vouchers for positions on November 14, 2003, January 8, 2004,
and January 23, 2004. The agency dismissed this claim on the grounds of
untimely EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2).
The agency noted that complainant did not initiate contact with an
EEO Counselor until March 4, 2005, after the expiration of the 45-day
limitation period.
At the conclusion of the investigation, 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). Although complainant
requested a hearing, the AJ denied the hearing request on the grounds
that complainant failed to request a hearing within 30 days of having
received notice of his right to do so. The AJ remanded the complaint
to the agency, and the agency issued a final action pursuant to 29
C.F.R. � 1614.110(b).
The agency determined that complainant failed to prove that he was
subjected to discrimination as alleged with regard to each claim.
As for claim (1), the agency determined that it articulated legitimate,
nondiscriminatory reasons for the recommendations they gave prospective
employers concerning complainant for other agency positions. According to
the agency, the Associate Warden and the Captain stated that complainant
had open investigations related to his misconduct during the time frame
that he applied for the vacancies at issue. The Associate Warden stated
that he would have provided an unfavorable recommendation for any employee
who was under investigation for misconduct. The Captain stated that
he provided favorable recommendations for complainant but that he also
disclosed the fact that complainant faced pending disciplinary actions
for misconduct. The agency determined that the record lacked any evidence
that the reasons articulated by these agency officials were pretext for
illegal discrimination based on complainant's race.
With respect to claim (2), the agency stated that GS-9 Lieutenants
typically were assigned to the P.M. Activities Lieutenant duty, but
that there was no policy mandating that only GS-9 Lieutenants could be
assigned this duty. The agency noted that the Associate Warden explained
that complainant showed poor judgment in an incident where he failed
to follow institution procedures concerning the handling of inmates.
According to the Associate Warden, the decision was made not to permit
complainant to run his normal shift alone until he demonstrated good
decision-making. The Captain stated that he had concerns related
to complainant's judgment when complainant had been assigned as an
Operations Lieutenant. The agency noted that no other White GS-11
Lieutenants had been assigned to the P.M. Activities Lieutenant duty for
two consecutive quarters. The agency maintained that this fact supported
its position that legitimate concerns regarding complainant's performance
existed when he served as Operations Lieutenant and that they felt more
comfortable with complainant not being the decision-making authority on
a work shift. Further, the agency noted that it was not uncommon for
other GS-11 Lieutenants to be assigned this duty. The agency determined
that the record lacked evidence indicating that its reasons were pretext
for illegal discrimination based on complainant's race.
With regard to claim (3), the Senior Officer Specialist stated that
the Lieutenant handled this overtime matter appropriately and in
accordance with institution policy regarding overtime. The Senior
Officer Specialist stated that this was not an emergency situation
therefore the Lieutenant was supposed to follow the overtime list to
assign any available overtime. The agency noted that complainant worked
more overtime than any other GS-11 Lieutenant. With respect to claim (4),
the Captain stated that if complainant's overtime was canceled, it was
because there was someone available to work the assignment without the
need to authorize overtime. According to the Captain, due to budgetary
concerns, he made efforts to avoid assigning overtime if there were
staff available and already on duty to handle an assignment. The agency
noted that two other GS-11 Lieutenants stated that they had scheduled
overtime canceled on several occasions. As for claim (5), the Captain
explained that he made roster adjustments routinely in light of the needs
of the institution. The Captain stated that this was ordinarily done to
avoid having to pay overtime when there was already sufficient personnel
on duty to handle whatever assignments arose. The agency noted that two
other GS-11 Lieutenants stated that roster adjustments are not unusual and
instead were part of normal operating procedures at the institution. The
agency determined that there was nothing in the record to suggest that
the reasons articulated by the Captain for the roster adjustments were
pretext. Thereafter, complainant filed the instant appeal.
ANALYSIS AND FINDINGS
Initially, we shall address the claims that were dismissed on procedural
grounds. With regard to the claim regarding unfavorable recommendations
allegedly given for the six positions during the period of February 1,
2005 - June 20, 2005, the agency stated that the positions were not filled
and therefore no vouchering would have taken place. Complainant has
not disputed the agency's assertions on appeal. We therefore find that
complainant was not aggrieved by the alleged unfavorable recommendations
and this claim was properly dismissed for failure to state a claim.
We find that the dismissal of the claim concerning staff questioning
complainant's roster adjustment was proper as complainant did not suffer
harm to a term, condition, or privilege of his employment. With regard
to the claim concerning nonselections and alleged unfavorable vouchering
that was dismissed on the grounds of untimely EEO Counselor contact,
we find that complainant's EEO contact of March 4, 2005, was more than
45 days after the selections at issue and therefore was untimely.
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). He
must generally establish a prima facie case by demonstrating that
he 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). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. 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); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
With regard to claim (1), we find that based upon its statement that
complainant had experienced performance and conduct problems and
was facing possible disciplinary proceedings, the agency articulated
legitimate, nondiscriminatory reasons for not providing complainant
with favorable vouchers for positions for which he applied. Complainant
claimed that one Black Correctional Officer was allowed to transfer and
some other Black employees were promoted within. However, complainant
did not establish that any individual outside his protected class
who was facing possible disciplinary proceedings received favorable
vouchers for positions for which they had applied. Therefore, we find
that complainant did not establish that he was discriminated against on
the basis of his race.
As for claim (2), the agency articulated legitimate, nondiscriminatory
reasons for assigning complainant for a second consecutive quarter as
the P.M. Activities Lieutenant. The agency explained that complainant
had experienced difficulties while serving as the Operations Lieutenant
and therefore the decision was made not to permit complainant to run
his normal shift alone until he demonstrated good decision-making.
The agency further stated that there were only four GS-9 Lieutenants
and that there were thirteen or fourteen GS-11 Lieutenants, therefore
it was not uncommon to have one of the GS-11 Lieutenants assigned to
the Activities Lieutenant duty. Complainant claimed that GS-9 level
employees rather than GS-11 Lieutenants usually were assigned as the
P.M. Activities Lieutenant and that no Black GS-11 Lieutenants had been
assigned to this duty. Nevertheless, we observe that complainant has
neither refuted the agency's position concerning his performance as the
Operations Lieutenant nor shown it was uncommon for GS-11 Lieutenants
to be assigned to the Activities Lieutenant duty.
As for claim (3), the agency articulated a legitimate, nondiscriminatory
reason by stating that the overtime list was utilized to assign any
available overtime and that this was in accordance with institution policy
regarding overtime. The record also reflects that complainant received
more overtime than any other GS-11 Lieutenant. Complainant received
30,036 overtime minutes in calendar year 2005, which was over 9,000
minutes more than any non-White Lieutenant received during the same year.
We find that complainant has not established by a preponderance of the
evidence that the agency's explanation was pretext.
With regard to claim (4), we find that the agency's explanation that the
cancellation of complainant's scheduled overtime was due to budgetary
concerns was a legitimate, nondiscriminatory reason. Complainant claimed
that a Black Lieutenant took two inmate medical trips and was compensated
with overtime. According to complainant, there was not a large difference
in the number of personnel working on the date that he was denied overtime
and the days that the comparison was paid overtime. However, in light
of the fact that complainant received more overtime than any other GS-11
Lieutenant and that two GS-11 Lieutenants stated that they had scheduled
overtime canceled on several occasions, we find that complainant has
not shown that the agency's stated explanation was pretext.
In terms of claim (5), we find that the agency articulated a legitimate,
nondiscriminatory reason for the roster adjustments when it stated that
this was typically done to avoid having to pay overtime when there were
already sufficient personnel on duty to handle whatever assignments
were presented. Complainant claimed that the Captain was moving people
around to give Black staff overtime. However, the record indicates
that complainant in general was not denied overtime opportunities and
no evidence has been presented to establish that the Captain's changing
of the schedule reflected discriminatory intent.
CONCLUSION
The agency's dismissal of a portion of the complaint and the agency's
finding of no discrimination regarding the remainder of the complaint
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
July 16, 2009
__________________
Date
1 "Vouchers" are apparently recommendations.
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01200807177
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080717