0120131434
06-25-2013
James L. Keys, Complainant, v. Shaun Donovan, Secretary, Department of Housing and Urban Development, Agency.
James L. Keys,
Complainant,
v.
Shaun Donovan,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 0120131434
Agency No. HUD-00045-2012
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's February 7, 2013 final decision concerning an equal employment opportunity (EEO) complaint claiming 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as an Administrative Management Specialist at the Agency's Office of Field Policy and Management in Washington D.C.
On April 30, 2013, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the bases of race (African-American), sex (male), color (dark), age (over 40), and in reprisal for prior EEO activity when:
on March 6, 2012, he discovered that his current supervisor, Associate Assistant Deputy Secretary for Field Policy and Management, rated him "Fully Successful" on his FY2011 final performance appraisal.
After the investigation of the claims, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision on February 7, 2013, pursuant to 29 C.F.R. � 1614.110(b).
The Agency found no discrimination. The Agency found that Complainant did not establish a prima facie case of race, sex, color, and age discrimination. The Agency found, however, Complainant established a prima facie case of reprisal discrimination. The Agency further found that assuming arguendo Complainant established a prima facie case of race, sex, color, and age discrimination, Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext. Specifically, the Agency noted although the two employees identified by Complainant were outside of Complainant's protected classes with respect to race, color, and age, these employees were not similarly situated to Complainant because they were supervised and rated by a different supervisor.
The Agency also noted that during the 2011 fiscal year, Complainant's supervisor supervised five employees besides Complainant (1 white female, 1 black female, 1 Hispanic female, 1 black male, and 1 white male). The Agency determined that the white female, black female, black male, and white male employees cannot be considered as comparators because they served in GS-15 positions with different job functions from Complainant who served in a GS-14 Administrative Management Specialist position. Furthermore, the Agency stated that the Hispanic female employee cannot be considered as a relevant comparator because she served in a GS-11 position with less responsibilities than Complainant.
Complainant, on appeal, argued that the Agency erred finding no discrimination. For instance, Complainant argues that his former supervisor and the Associate Assistant Deputy Secretary "made false statements to the EEO investigator and the Agency erred in their determination that the Agency's testimony is worth of belief or not a pretext for discrimination."
The instant appeal followed.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether a complainant has shown by a preponderance of the evidence that an agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we do not need to address Complainant's prima facie case as we find that the responsible Agency officials articulated legitimate, nondiscriminatory reasons for its actions, as detailed below.
The Associate Assistant Deputy Secretary (AADS), also Complainant's supervisor, stated that Complainant was assigned to a named supervisor's office but was later reassigned to his office as a result of a resolution of his separate formal complaint. The supervisor stated that Complainant informed him that he was not given performance elements by his former supervisor when he worked under his supervision. The supervisor stated because Complainant "had not been under my supervision for a minimum of ninety days, [Complainant] and I agreed to delay [Complainant's] rating for at least ninety days. During that ninety day period, [Complainant] and I went over the Complainant's performance elements and it was agreed that I would rate him on the agreed elements." AADS stated that at the end of the extended 90-day period, he rated Complainant as "fully successful" because "although he completed his assignments he did nothing that was beyond the call of duty or beyond his minimal requirements."
Further, the supervisor stated that the factors he took into consideration to complete Complainant's performance evaluation were "quantity and quality of his work products during the ninety days that I supervised him, the self-evaluation that [Complainant] provided and the input received from [Complainant's previous supervisor]." Moreover, the supervisor stated that Complainant's race, sex, color, age, and prior protected activity were not factors in his determination to give him a "fully successful" rating.
Complainant's former supervisor (supervisor) was Complainant's supervisor in the early part of the year of 2011. The former supervisor stated that Complainant "later complained that he wanted me involved in his performance rating after he was rated by his new supervisor, [AADS]. I rated him as 'fully successful' based on his activities and assignments. Although he completed his assignments be required my involvement to make sure that the work assignments were accomplished. There was nothing distinguished in his performance and I later discovered that he had made an error in assigning an agency employee that had to be revoked. Although this came to my attention after [Complainant] had been reassigned, took that error into consideration when he requested my input into his performance rating. 'Fully successful' means that he fully did the work assigned."
After careful review of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Complainant has provided no persuasive arguments indicating any improprieties in the Agency's findings. Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
June 25, 2013
__________________
Date
2
0120131434
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131434
6
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