01981935_01995910
10-05-2001
Glenn Bates, Complainant, v. John Whitmore, Acting Administrator, Small Business Administration, Agency.
Glenn Bates v. Small Business Administration
01981935; 01995910
10-05-2001
.
Glenn Bates,
Complainant,
v.
John Whitmore,
Acting Administrator,
Small Business Administration,
Agency.
Appeal Nos. 01981935; 01995910;
Agency Nos. 07-95-490; 02-96-520;
DECISION
INTRODUCTION
Complainant timely initiated appeals from two final agency decisions
concerning his complaints of unlawful 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 appeals are accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the final agency
decisions are AFFIRMED.
ISSUES PRESENTED
The issues presented herein are whether complainant has proven, by
preponderant evidence, that he was discriminated against on the basis
of race (African-American) when his performance appraisals were lower
than they should have been.
BACKGROUND
Complainant, employed by the agency as a Program Assistant, GS-6, in
the agency's Dallas Office at the time of the alleged discriminatory
events, filed a formal complaint on July 24, 1995, in which he alleged
that he was discriminated against on the above-referenced basis when
(1) he was denied a chance for advancement and promotion on November
24, 1991; (2) his performance rating was changed from a four rating to
a three rating by his second line supervisor on October 27, 1994; (3)
his requests for training were denied; and (4) he was not given access
to resources (supplies and equipment) from the regional office.
The agency accepted the second allegation for investigation and dismissed
the remaining three for failure to contact an EEO counselor in a
timely manner. Complainant appealed the agency's dismissal. On appeal,
the Commission affirmed the agency's dismissal of the first and third
allegations, but remanded the fourth allegation because the evidentiary
record did not indicate clearly the agency action being challenged.
Bates v. Small Business Administration, EEOC Appeal No. 01961961 (June
13, 1996). In the remand order, the agency was instructed to clarify the
fourth allegation, and after doing so, to issue a final agency decision
regarding the matter. Id.
After receiving the decision in EEOC Appeal No. 01961961, complainant
requested that we reconsider its affirmation of the agency's dismissal
of the first allegation.<1> The Commission granted the complainant's
request and ruled that the first allegation was improperly defined
by the agency. Bates v. Small Business Administration, EEOC Request
No. 05960684 (December 1, 1997). Specifically, the Commission ruled
that complainant was not challenging the non-promotion in November 1991,
but rather the fact that he had not been promoted despite having worked
above his grade-level for more than a year. Id. As such, the first
allegation was remanded to the agency for clarification. Id.
Per the order contained in EEOC Appeal No. 01961961, the agency clarified
the fourth allegation and issued a final decision on the matter.
That decision ruled that the fourth allegation should be dismissed
for mootness. Complainant appealed. On appeal, we reversed and
remanded the agency's dismissal pursuant to Jackson v. United States
Postal Service, EEOC Appeal No. 01923399 (November 12, 1992), request
to reconsider denied, EEOC Request No. 05930306 (February 1, 1993),
after determining that complainant had requested compensatory damages
in his original complaint. Bates v. Small Business Administration,
EEOC Appeal No. 01971776 (September 3, 1998). In the reversal, the
Commission ordered the agency to accord complainant the opportunity
to provide objective proof of the alleged damages. Id. The issues
contained therein will not be addressed in this decision.
On February 9, 1996, complainant filed a second formal complaint in
which he alleged that he was discriminated against on the basis of
race (African-American) when he was (1) given a three rating on his
performance appraisal on October 25, 1995; (2) denied the opportunity for
union representation; and (3) not promoted to a Business Opportunity
Specialist, GS-7 in November 1994. The agency accepted the first
issue for investigation. The second and third issues were dismissed
for failure to state a claim and failure to contact an EEO counselor
within a timely manner, respectively.<2> There is no evidence that
the agency's dismissals were appealed to the Commission. As such,
those issues will not be addressed in this decision.
Pursuant to 29 C.F.R. � 1614.606, the agency consolidated and investigated
the remaining issues of both complaints for processing.<3> On November
13, 1997, the agency issued a decision finding no discrimination.
Complainant appealed. That appeal was docketed as EEOC Appeal
No. 01981935. On June 22, 1999, the agency issued another decision
which appears to contain the same issues contained within the decision
of November 13, 1997. Notwithstanding the apparent duplicity of the
latter decision, complainant filed a second appeal. That appeal was
docketed as EEOC Appeal No. 01995910.
ANALYSIS AND FINDINGS
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). 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 in a discrimination case 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 has stated legitimate,
nondiscriminatory reasons for its actions. Regarding the October 1994
performance appraisal, the agency stated that complainant's second-line
supervisor reduced his performance rating from level four, given to
him by his first-line supervisor, to level three because complainant
�had not received any commendation from his first-line supervisor.�<4>
The second-line supervisor stated that the first-line supervisor
simply gave everyone in his office the same high ratings without
giving consideration to the amount and type of work they were doing.
Complainant's first-line supervisor stated that complainant was given
a level three in his performance evaluation in October 1995 because,
although his performance level was consistent with his performance level
of the previous year, his performance standards had changed.
Because the agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory events, complainant now bears the burden
of establishing that the agency's stated reasons are 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 attempting
to establish pretext regarding the October 1994 performance appraisals,
complainant argues, and the agency admits, that when the appraisals were
first issued, complainant, a Black female, an Hispanic female, and a
White male were rated at the level four by their first-line supervisor.
The second-line supervisor, however, reduced the ratings of complainant,
the Black female, and the Hispanic female to the level three; and
increased the White male's rating to a level five. Notwithstanding this
evidence, information in the file suggests that the second-line supervisor
was not aware of complainant's race.<5> The second-line supervisor
stated that she was unaware of complainant's race when she lowered his
performance rating. Complainant seemed to affirm this contention when
he stated that he and the second-line supervisor never met each other.
Regarding the October 1995 performance appraisal, complainant submitted no
evidence to suggest that the agency's action was race-based. Therefore,
we find that complainant has failed to show that the agency's articulated
reasons were pretextual. As such, his claim of discrimination must fail.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's responses thereto, and arguments and
evidence not specifically addressed in this decision, we hereby AFFIRM
the final agency decisions.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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
___10-05-2001_______________
Date
1Complainant's request for reconsideration did not contest the dismissal
of the third allegation.
2It appears that the third issue in this complaint is the same as the
first issue in the previous complaint. See Bates v. Small Business
Administration, EEOC Appeal No. 05960684 (December 1, 1997) (finding
that complainant stated that he was not challenging the fact that he was
not promoted in November 1991, but rather the agency's decision not to
promote him to the GS-7 level after he began performing duties at that
level in November 1994).
3We note that remaining issues do not include the fourth allegation of
the first complaint (i.e., whether complainant was discriminated against
when he was not given access to resources from the regional office).
4The agency has five performance rating levels: level five - outstanding;
level four - exceeds fully successful; level three - fully successful;
level two - minimally successful; and level one - unacceptable.
5The second-line supervisor was employed in the agency's Washington,
DC Office. All other relevant employees were employed in the agency's
Dallas, TX Office.