01A01962
10-10-2001
Hayden Gray, Complainant, v. John Whitmore, Acting Administrator, Small Business Administration, Agency.
Hayden Gray v. Small Business Administration
01A01962
October 10, 2001
.
Hayden Gray,
Complainant,
v.
John Whitmore,
Acting Administrator,
Small Business Administration,
Agency.
Appeal No. 01A01962
Agency Nos. 07-97-618 01-98-619
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning two 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 appeal is accepted pursuant to 29
C.F.R. � 1614.405. Complainant alleged that he was discriminated against:
(1) on the basis of sex (male) when he was not reassigned to a
workstation of his choosing; and
in retaliation for prior EEO activity, when he was rated only �Fully
Successful� on a critical element of his FY1997 performance appraisal.
The record reveals that during the relevant time, complainant was employed
as a Loan Specialist at the agency's Jackson, Mississippi facility.
Believing he was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaints 07-97-618 and
01-98-619 on July 25, 1997 and January 23, 1998 respectively. The agency
accepted the complaints and consolidated them for investigation. At the
conclusion of the investigation, complainant was informed of his right to
request a hearing before an EEOC Administrative Judge or alternatively,
to receive a final decision by the agency. Complainant did not request
a hearing and the agency issued a final decision.
In its FAD, the agency concluded that complainant had failed to prove by
a preponderance of the evidence that the reasons offered by the agency
for its actions were a pretext designed to conceal discriminatory animus.
From the FAD complainant brings the instant appeal.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Prewitt v. United States Postal Service, 662 F.2d
292, 310 (5th Cir. 1981); and Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545
F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to reprisal cases),
the Commission agrees with the agency that complainant failed to establish
by a preponderance of the evidence that the agency's articulated reasons
for its actions were a pretext for discrimination.
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 he has demonstrated
by a 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, the Commission finds that the agency has articulated
legitimate, nondiscriminatory reasons for its action. Consequently, we
will dispense with an examination of whether complainant established
a prima facie case with respect to the above cited issues and review
below, the reasons articulated by the agency for its actions as well as
complainant's effort to prove pretext.
With respect to complainant's claim that he was discriminated against
when he was not reassigned to a workstation of his choosing, the agency
explained that complainant's request was denied because the workstation
to which he wanted to move had no telephone installed and that arranging
for a telephone installation would involve some expense to the agency.
The agency regarded that expense as unjustifiable because in the immediate
area there were two other unoccupied workstations with telephones already
installed. Complainant was given the option of moving into either of these
workstations. In an attempt to prove pretext, complainant asserts that
the agency would have incurred no expense had it installed a telephone
in his chosen workstation. On its face this assertion seems unlikely
and complainant offers no evidence whatever to support it.
In regard to complainant's claim that his performance appraisal was
lowered in retaliation for his prior EEO activity, the agency identified
several problems with complainant's performance which contributed to
the lower rating. This is a legitimate, nondiscriminatory reason for
the agency's actions. Complainant has failed to show by a preponderance
of the evidence that the agency's explanation is a pretext designed to
conceal discriminatory animus.
For the foregoing reasons, after a careful review of the record,
including complainant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we AFFIRM the FAD.
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
October 10, 2001
__________________
Date