01971058
09-02-1999
William E. Croom, Appellant, v. Madeline K. Albright Secretary, Department of State Agency.
William E. Croom, )
Appellant, )
) Appeal No. 01971058
v. ) Agency No. 93-49
)
Madeline K. Albright )
Secretary, )
Department of State )
Agency. )
)
)
DECISION
The appellant filed a timely appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of race (Black) and reprisal (prior EEO activity), in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq.. Appellant alleges he was discriminated against when he was
terminated from his employment as a Foreign Service Information Systems
Manager. The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED.
The record reveals that during the relevant time period, the appellant
was employed as a Foreign Service Information Systems Manager, at
the American Embassy in Haiti. The appellant alleged that he was
terminated as a result of being criminally convicted of making false
claims whereas white employees were not terminated even when convicted
of similar offenses. He also alleged that the manner of his conviction
and termination was pursued more aggressively because he had engaged in
protected EEO activity.
The appellant sought EEO counseling and, subsequently, filed a complaint
on June 22, 1993. At the conclusion of the investigation, the appellant
requested that the agency issue a final decision on October 23, 1995.
The agency concluded that appellant failed to establish a prima facie
case of race discrimination because although he is a member of a
protected class and had suffered an adverse employment action, he failed
to show that he was replaced by a non-African American. The agency also
concluded that he failed to establish disparate treatment because, of the
nine employees prosecuted from 1987 and 1994 for making false claims or
submitting false vouchers, six had resigned before being terminated, one
employee(Caucasian) was not discharged, and one employee was discharged
but had her discharge overturned by the U.S. District Court. The agency
further reasoned that the Caucasian employee who was not discharged was
convicted of a misdemeanor whereas the appellant had been convicted of
nine felony counts.
On the issue of reprisal, the agency concluded that it had not retaliated
against the appellant because his conviction was the basis for his
termination and not the fact that he had raised issues of discrimination
during the termination proceeding.
On appeal, the appellant submitted no statement in support of his appeal.
The agency requests that we affirm its final decision.
After a careful review of the record, based on the guidance set forth
in McDonnell Douglas v. Green, 411 U.S. 792 (1973), Texas Department
of Community Affairs v. Burdine, 450 U.S. 248 (1981); and McKenna v.
Weinberger, 729 F.2d 783 (D..C. Cir. 1984) ( prima facie case of
reprisal)the Commission finds that the appellant established a prima
facie case of race discrimination because he established that he is a
member of a protected group, he was terminated from his position and an
employee not of his protected group though referred for prosecution for
making false claims was not terminated. We also find that the appellant
established a prima facie case of reprisal because he established that
he had engaged in protected EEO activity by raising EEO claims during
the proceedings to remove him, he established that the agency was aware
of his protected EEO activity, he suffered an adverse employment action
by being terminated and he established a nexus in that his termination
closely followed his EEO activity.
We are not persuaded, however, that the agency discriminated against
the appellant by terminating his employment on either basis. First, the
appellant has failed to show that the agency's reasons for terminating
him when compared to a white employee was pretextual. That is, the agency
established that it terminated the appellant because he had been convicted
of nine felony counts of making false claims for Separate Maintenance
Assistance, a form of subsistence payments for family members of foreign
service officers. One white employee also a Foreign Service employee
who had allegedly made false claims, was referred for prosecution by
the Office of Inspector General, a branch of the Department of State.
The U.S. Attorney declined to prosecute him. The agency stated that
because the white employee did not have a conviction it proposed only
to suspend him for 20 days and not to terminate him.
Another white employee who was referred for prosecution was convicted of
one misdemeanor, was suspended for 60 days and had to make restitution.
The appellant failed to show that the agency's reasons for not terminating
these employees, i.e. their lack of a conviction, was not credible.
The appellant claims that the agency treated his case differently because
his case was referred for prosecution and then prosecuted whereas others
were not . The evidence on the record does not bear this out however,
because the Office of Inspector General referred for prosecution even
those cases involving the white employees. The decision whether to
prosecute the cases came from the Department of Justice, an altogether
different agency, and not the agency that employed the appellant.
It cannot be inferred from the actions of another agency that the
appellant's employer/agency engaged in discriminatory conduct.
The appellant also contends that he was not offered the opportunity
to resign because he had raised claims of race discrimination whereas
other white employees had been given that opportunity. The record does
not support this claim either because there is correspondence showing
the discussions between the appellant's counsel and the agency in which
he was offered the option of resigning in return for a promise not to
sue the agency for his EEO claims. The record further shows that the
appellant refused the agency's offer. This does not in our view raise
the inference of reprisal or race discrimination but rather reflects
a fair negotiating position on the part of the agency in attempting to
settle a potential legal claim against it.
Therefore, after a careful review of the record, including appellant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the agency's
final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
9/2/99
DATE Carlton Hadden, Acting Director,
Office of Federal Operations