0120063640
07-02-2007
Fred E. Tribble, Sr., Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, (Internal Revenue Service) Agency.
Fred E. Tribble, Sr.,
Complainant,
v.
Henry M. Paulson, Jr.,
Secretary,
Department of the Treasury,
(Internal Revenue Service)
Agency.
Appeal No. 01200636401
Agency No. 052477
DECISION
On May 23, 2006, complainant filed an appeal from the agency's March 28,
2006, 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.
At the time of events giving rise to this complaint, complainant worked
as a Contact Representative, GS-0962-08, at the agency's Wage and
Investment Service Center, Accounts Management Division facility in
Memphis, Tennessee. On April 29, 2005, complainant contacted an EEO
Counselor and filed a formal EEO complaint on July 7, 2005, alleging
that he was discriminated against on the basis of reprisal for prior
protected EEO activity [arising under Title VII] when, on April 8, 2005,
his supervisors lowered his average Critical Job Element (CJE) score on
his annual performance appraisal rating from the "4.0" he received the
previous year to a "3.0."
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). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b). The final agency decision (FAD) found that complainant
failed to prove that he was subjected to discrimination as alleged.
The FAD found the following: complainant established a prima facie
case of reprisal discrimination because of the close proximity in
time between the appraisal rating on April 8, 2005 and his prior EEO
complaint filed on December 1, 2004. Additionally, complainant's
supervisors were aware of his EEO participation prior to the issuance
of the performance appraisal on April 8, 2005. The FAD then found
that complainant's supervisors gave him notice of deficiencies in his
performance prior to the end of the rating period and that they did not
believe complainant's performance data supported a higher CJE rating.
Further, the FAD found that, although complainant alleged that his
supervisors treated other similarly situated employees more favorably
when assigning work, complainant failed to provide any evidence that his
supervisors assigned him more difficult cases or that he performed better
than his ratings reflected. Finally, the FAD found that complainant
failed to demonstrate that his performance during the rating period
was such that, but for his prior protected EEO activity, he reasonably
expected to receive a higher performance appraisal rating.
On appeal, complainant states that he was notified by mail that
his instant complaint and his previous complaint were going to be
consolidated, and he states that he has not received his award dated
November 15, 2004.2 The agency requests that we affirm the FAD.
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").
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 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.
In this case, we will assume arguendo that complainant established a
prima facie case of reprisal discrimination. The agency articulated a
legitimate, nondiscriminatory reason; namely, complainant's performance
of his assigned duties was unsatisfactory. During the rating period,
complainant's supervisors informed him on numerous occasions about his
performance problems and provided suggestions for improvement. On July
29, 2004, complainant received a Progress Review detailing how he was not
meeting several aspects of his CJEs. On November 12, 2004, complainant
received an "Opportunity to Improve" letter discussing his unacceptable
and minimally acceptable performance in various CJE areas. Additionally,
complainant's supervisors suggested that he use the Electronic Accounts
Resolution Guide to improve his performance, but noted that he refused
to use the system. Complainant's supervisors stated that his Embedded
Quality Review Systems Data did not warrant giving him a higher rating.
We find that complainant has failed to show pretext because although his
supervisors were aware of his prior protected EEO activity, complainant
has not proven by a preponderance of the evidence that his supervisors'
actions rested on retaliatory intent. Complainant argued that he deserved
a higher rating because, compared to another employee working the same
shift, his assignments usually consisted of more complex cases. However,
complainant fails to provide any evidence in support of this claim.
Further, the record reflects that complainant received notice of his
performance deficiencies, via his Progress Review on July 29, 2004 and his
"Opportunity to Improve" letter on November 12, 2004, before he filed
his prior EEO complaint on December 1, 2004. We find that the record
evidence is insufficient to support a claim of reprisal discrimination.
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if 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 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).
COMPLAINANT'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 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
July 2, 2007
__________________
Date
1 Due to a new data system, your case has been re-designated with the
above referenced appeal number.
2 Based on the scant information in the record before us, we
discern no basis upon which to find that the instant case should
have been consolidated with some other case of complainant's. We note
additionally that the award that complainant refers to appears to be for
the rating period of March 3, 2003 to February 29, 2004, during which
time complainant received an average rating of "4.0." Complainant fails
to provide any further details about his failure to receive this award.
??
??
??
??
2
0120063640
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036