02A00004
07-20-2001
Agency.
Anthony McLean v. Department of the Army
02A00004
July 20, 2001
.
Anthony McLean,
Grievant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 02A00004
Agency No. AFGE-FB-MU-981202.IG & AFGE-FB-P-990302.IG2
DECISION
Grievant timely initiated an appeal of a final agency decision (FAD)
concerning his grievance of unlawful employment discrimination on the
bases of race (African-American), disability (missing limb), and reprisal
(prior EEO activity) in violation of Title VII of the Civil Rights Act
of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. For the reasons stated herein, the agency's
FAD is affirmed.
Grievant worked as a Supply Technician, GS-5, at a North Carolina facility
of the agency. In November 1998, the agency issued grievant a performance
appraisal for the rating period of November 1, 1997 through October 31,
1998. The agency gave grievant a rating of �Success� in three areas
of responsibility, �Excellence� in one area, and �Successful-Level
2� overall. The agency, subsequently, on February 22, 1999, issued
grievant a Notice of Five-day Suspension for �unauthorized absence from
your workplace, violating office policy, lying to your supervisor, and
asking another employee to lie for you,� which was effective May 3 -
7, 1999. Grievant, believing he was a victim of discrimination, filed
two separate grievances, both of which reached Step 3 of the negotiated
grievance procedure established by his agency and representative union.
Grievant, in his grievances, alleged that the agency discriminated
against him based on reprisal when it gave him an overall rating of
�Successful-Level 2"; and based on race, disability, and reprisal when
it issued him a Notice of Five-day Suspension.<1>
The agency stated that grievant's performance did not warrant a rating
of �Excellence� because grievant generally met his responsibilities,
but he did not go �above and beyond� the call of duty. The agency stated
further that it has an office break policy, of which grievant is aware,
that an employee must request permission to leave his workstation for
a break and generally inform his supervisor that he is away from his
workstation. The agency indicated that grievant (1) failed to notify his
supervisor that he was leaving his workstation on January 27, 1999, (2)
left his workstation for approximately 45 minutes to go to the vending
machines in another building, (3) told his supervisor that he informed
an acting secretary where he was although the acting secretary stated
that grievant did not, and (4) asked the acting secretary to say that
she was aware of where grievant was on January 27. The agency issued a
single Step 3 decision denying both of grievant's grievances and finding
no discrimination. This appeal by grievant followed.
When a grievant relies on circumstantial evidence to prove an agency's
discriminatory intent or motive, there is a three step, burden-shifting
process. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
The initial burden is on the grievant to establish a prima facie case
of discrimination. Id. at 802. The burden then shifts to the agency to
articulate some legitimate, nondiscriminatory reason for its challenged
action. Id. If the agency is successful, the grievant must then prove,
by a preponderance of the evidence, that the legitimate, nondiscriminatory
reason articulated by the agency is merely pretext for its discrimination.
McDonnell Douglas, 411 U.S. at 804.
Because the agency articulated a legitimate, nondiscriminatory reason for
what occurred, i.e., grievant's �Successful-Level 2" job performance and
office policy, we may proceed directly to determining whether grievant
satisfied his burden for showing pretext.<2> Haas v. Department of
Commerce, EEOC Request No. 05970837 (July 7, 1999)(citing U.S. Postal
Service Board v. Aikens, 460 U.S. 711, 713-14 (1983)). Grievant may do
this in one of two ways, either directly, by showing that a discriminatory
reason more likely motivated the agency, or indirectly, by showing that
the agency's proffered explanation is unworthy of credence. Texas Dep't
of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). Essentially,
the fact finder must be persuaded by the grievant that the agency's
articulated reason was false and that its real reason was discrimination.
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515 (1993).
The Commission finds that grievant failed to establish pretext. He failed
to present evidence that would substantiate a higher performance
evaluation and he failed to show that similarly situated individuals
outside of his protected classes were treated more favorably than he.
In addition, the record contains various memorandums regarding the
office policy for breaks and the collective bargaining agreement between
the agency and union stated the policy of requesting permission from
a supervisor. The record also contains a chart of discipline for
various offenses. The table suggests �written reprimand to 5 day
suspension� for a first time offense of �unauthorized absence� and
suggests �written reprimand to removal� for a first offense of �lying
to a supervisor.� The record as a whole does not support grievant's
contentions of discrimination.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the
Equal Employment Opportunity Commission to AFFIRM the FAD because
the preponderance of the evidence of record does not establish that
discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M701)
The Commission may, in its discretion, reconsider the decision in this
case if the grievant 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 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 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).
GRIEVANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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 grievance 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 grievance.
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
July 20, 2001
__________________
Date
1Grievant initiated EEO contact and subsequently filed a formal EEO
complaint regarding the Notice of Five-day Suspension. The agency
rendered a final decision dismissing that particular issue of the
complaint because grievant had raised the same matter under the negotiated
grievance procedure. The Commission notes that the grievance, which is
at issue here, was filed prior to the EEO complaint on the same matter.
2For the purpose of this decision, the Commission will assume without
finding that grievant is an individual with a disability.