01983516
12-08-1999
Reuben T. Bussey, Jr., Complainant, v. Carol M. Browner, Administrator, Environmental Protection Agency, Agency.
Reuben T. Bussey, Jr. v. Environmental Protection Agency
01983516
December 8, 1999
Reuben T. Bussey, Jr., )
Complainant, )
) Appeal Nos. 01983516
) 01983424
v. ) Agency No. 960036R4
)
Carol M. Browner, )
Administrator, )
Environmental Protection Agency, )
Agency. )
)
DECISION
Complainant filed timely appeals<1> with this Commission from a final
agency decision (FAD) concerning his complaint of unlawful employment
discrimination on the bases of race (African-American), sex (male), and
age (3/7/43), in violation of Title VII of the Civil Rights Act of 1964,
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.<2>
Complainant claims that he was discriminated against on these bases
when his Performance Appraisal (PA) for the period October 1, 1994
to September 30, 1995, was assessed as "Exceeds Expectations" instead
of "Outstanding."<3> The appeal is accepted in accordance with EEOC
Order No. 960.001. For the reasons that follow, the Commission AFFIRMS
the FAD.
The record reveals that during the relevant time, complainant was
employed as a GS-13 General Attorney at the agency's Office of Regional
Counsel, Atlanta, Georgia. Believing he was a victim of discrimination,
complainant sought EEO counseling and, subsequently, filed a formal
complaint.<4> At the conclusion of the investigation, the agency issued
its FAD, finding no discrimination. Complainant makes no new contentions
on appeal, and the agency requests that we affirm its FAD.
Based on the legal standards set forth in McDonnell Douglas v. Green,
411 U.S. 792 (1973), and Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979),
the FAD found that even if complainant had established a prima facie
case of race, sex, or age discrimination, he failed to present credible
evidence that management's explanations for its decision were a pretext to
mask unlawful discrimination. We agree with the agency's conclusion.
Our review of the record reveals that the PA in question was prepared
by the supervisor (S) who most directly supervised complainant's work
during the period. However, pursuant to agency policy, it was signed
by a rating official (RO) who was technically complainant's supervisor
during that time. S supported the rating on each element with very
detailed comments, referencing complainant's areas of strength as well as
those areas where he needed to improve, such as timeliness, completing
documentation, communicating the status of work, and following through
without the need for supervisor intervention. S gave numerous specific
examples of each "problem" area.
Although complainant denies that his work suffers from any shortcomings,
and asserts that he out-performs co-workers who were given an
"Outstanding" rating, we nonetheless find that S's comments are fully
corroborated by RO and another supervisor who are both familiar with
complainant's work and aware of the problems referenced by S in her
appraisal comments. Moreover, they provide affidavit testimony that
they received complaints from co-counsel at other agencies, as well
as opposing counsel in complainant's assigned cases, regarding his
failure to follow through on work that was expected of him. RO also
testified that complainant was unwilling to take on the level of
responsibility associated with "outstanding" performers, and that when
he was nevertheless assigned to take on leadership roles in dealing with
national issues and critical cases, his performance was not "outstanding,"
for the same reasons reflected in S's comments. RO stated that based on
the years of experience complainant had with the agency, they should have
been able to rely on him as a leader, but that his performance problems
did not permit this. RO also noted that the "Exceeds Expectation" rating
was higher than the "Fully Successful" rating earned by complainant in the
prior two rating periods. The approving official (AO) who also signed
the PA testified that he was familiar with complaint's work, and that
the "Exceeds Expectations" rating was correct. Complainant presents no
credible evidence supporting his claim that S, RO, or AO were motivated
by discriminatory animus in assigning him the rating in question.
Accordingly, based on the legal standards set forth above, we conclude
that complainant has not shown by a preponderance of the evidence that
the agency's reasons were untrue or a pretext for discrimination on
the bases of race, sex, or age. See St. Mary's Honor Center v. Hicks,
509 U.S. 502 (1993).
Therefore, 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 (M1199)
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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
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 the decision. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive the decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
December 8, 1999
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________ __________________________
1Complainant filed two appeals with this Commission, on different dates,
which were accepted and routinely assigned appeal numbers, 01983424 and
01983516, as captioned above. However, it appears that these appeals
derive from the same complaint, the same investigation, and the same FAD.
Accordingly, we hereby consolidate these appeals herein.
2On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
3"Outstanding" was the highest possible rating, and "Exceeds Expectations"
was the next highest rating possible, followed by "Fully Successful."
4The complainant originally set forth three incidents of claimed
discrimination in addition to the PA at issue. However, the agency
rejected these for procedural reasons. Complainant appealed this
determination to the Commission. We rendered a decision affirming
the agency's dismissal. See Bussey v. EPA, EEOC Appeal No. 01971079
(October 17, 1997). Complainant did not file a request to reconsider this
determination with the Commission, nor is there any indication that he
challenged this determination in any other forum.