01992292
06-25-2002
Richard A. Masterson, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Richard A. Masterson v. Department of Interior
01992292
June 25, 2002
.
.
Richard A. Masterson,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01992292
Agency Nos. OS-96-010; OS-98-008
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint 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 on the bases of race (White) and sex (male) when:
(1) he received the rating of �Unacceptable� on his performance evaluation
for the 1994-1995 rating period;
(2) he was placed on a performance improvement plan (PIP) effective
January 1996;
(3) he was denied a within grade increase on December 11, 1995;
(4) he received a directed reassignment to the Complaints Processing
Unit;
In addition to the above cited bases, complainant alleged discrimination
based on age (DOB: 5/23/37) and reprisal (prior EEO activity) when:
(5) he was subjected to a hostile work environment;
(6) he was constructively discharged.
The record reveals that during the relevant time, complainant was employed
as an Equal Employment Opportunity Specialist GM-260-14 in the Office
of the Secretary, Interior Service Center. Believing he was a victim
of discrimination, complainant sought EEO counseling and subsequently
filed a formal complaint on April 2, 1996 and March 30, 1997. 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 requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant established a
prima facie case of race and sex discrimination when he was issued a
rating of �Unacceptable� because other female employees who were not
Caucasian and who were also of the same grade level, received higher
performance ratings during the same rating period. The agency concluded
that it stated legitimate non-discriminatory reasons for the rating
which complainant failed to show were a pretext for discrimination.
Specifically, the agency's Director of the Office of Equal Opportunity
(OEO) (RMO1) stated that complainant was responsible for writing final
agency decisions in cases alleging violations of civil rights laws
but that his decisions required numerous changes and editing and were
not written in a thorough, logical and organized manner. Further, RMO1
stated complainant's decisions were not written in a manner in which the
intended reader could easily understand with supporting conclusions.
In addition, RMO1 stated complainant's policy directives and letters
required substantial editing and revisions.
RMO1 further testified that complainant had only completed 15 decisions
in the rating period which was extremely low for what is expected of an
employee of complainant's grade level. She stated that four decisions
were issued beyond the 60-day time limit stated in the regulations and
that five decisions were five months old.
In the critical element of complainant's performance standards
requiring him to track the status of cases, RMO1 stated complainant
failed to implement an automated tracking system to ensure the cases
were completed in a timely manner. Under the critical element requiring
examination of cases for early resolution, the complainant had not made
any recommendations to settle any cases or made it standard practice
for his team members to seek early resolution of their cases.
The agency found that it is standard personnel practice to place an
employee on a performance improvement plan (PIP) and to deny a within
grade increase when an employee has an unsatisfactory performance rating.
The within grade increase had been processed in complainant's case,
but was not implemented when the personnel office received notice of an
unacceptable rating. After the complainant successfully completed the
performance improvement plan, the within grade increase was effected.
Therefore, the agency concluded complainant did not show that either the
PIP or the within grade increase denial were motivated by discrimination.
The agency found that complainant established a prima facie case of race
and sex discrimination when he was reassigned to the Complaint Processing
Unit (CPU) because four White employees were assigned to CPU with only
one assigned to the policy unit compared to six Black employees in the
policy unit and five in the CPU. The agency found that it articulated
a legitimate non-discriminatory reason for assigning complainant to
the CPU - that he had previously worked predominantly in the area of
processing and drafting final agency decisions. Complainant failed
to show, according to the agency, that this reason was a pretext for
discrimination.
In response to complainant's claim that he was subjected to a hostile work
environment, the agency stated that the entire office was understaffed
due to a reduction-in-force (RIF) which reduced the number of employees
writing final agency decisions from seven to two on a full-time basis.
The agency also stated that the automated tracking system did not work
which made it more difficult for staff to track their cases. According
to the agency, although complainant needed improvement in his writing
of decisions, the meetings with him about his PIP were not demeaning
but were intended to communicate the desired standard. Finally, the
discriminatory statements complainant alleged were made by two female
executives in the agency, were not made by complainant's supervisors,
nor did the statements influence the decisions regarding complainant's
performance evaluation, his placement on a PIP, the denial of a within
grade increase or his reassignment to the CPU.
Complainant's Contentions on Appeal
On appeal, complainant contends that the agency failed to articulate with
sufficient clarity a legitimate reason for issuing him an Unacceptable
rating. He contends that there were major inconsistencies in management's
assessment of his performance and that all 3 GS-14 males were rated
unacceptable at the same time all GS-14 females were rated much higher.
Complainant contends he had always been rated �Exceeds Fully Successful�
or �Outstanding� for his entire federal career and that RMO1 had rated
him at least �Fully Successful� for the past two rating periods.
Complainant also alleged that RMO1 lowered other male employees ratings
to promote lesser qualified Black females. Complainant contended that
the agency failed to show which decisions he had written that failed
to meet standards. The agency, he argued, relied on the number of
decisions he wrote in rating his performance unacceptable, but that the
number of decisions an employee wrote was not specifically part of his
performance standards.
Regarding the tracking of cases, complainant argued that the agency
acknowledged it was unable to implement an automated tracking system due
to the failure of the system it obtained to work properly. He tracked
his cases manually, the same way other employees did.
Complainant argued that his directed reassignment to the CPU caused his
job to be in jeopardy because complaint processing was being considered
for contracting outside of the office. He claimed that two Black males
with experience in writing decisions, but who had no experience in policy
making, were unfairly assigned to the more secure policy unit.
Finally, complainant argued that he felt compelled to leave his employment
because he did not receive an updated rating for his PIP performance at
the end of the rating period and thought he might receive a less than
satisfactory rating. This idea was reinforced, he argued, by RMO1's
treatment of another older White male employee who was removed for
poor performance. He also argued that the atmosphere in the office
was permeated with anti-White male bias which was corroborated by the
statements of other White male employees or former employees. He argued
that the number of rewrites of his decisions increased after he was
placed on a PIP and after he contacted an EEO counselor.
ANALYSIS AND FINDINGS
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)
(requiring a showing that age was a determinative factor, in the
sense that "but for" age, complainant would not have been subject to
the adverse action at issue); 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), we find that the agency articulated a legitimate
non-discriminatory reason for giving complainant a rating of Unacceptable
and that complainant failed to demonstrate that the agency's reasons
were a pretext for discrimination. Specifically, complainant failed to
show by a preponderance of the evidence that his work performance was
not at an unacceptable level during the period in question. Moreover,
complainant failed to show by a preponderance of the evidence that any
of the agency's actions were based on his race, sex, age or reprisal.
The record indicates that during the July 1994 to June 1995 rating
period, complainant's supervisor (Black, female) (RMO1) was charged
with rating complainant as well as many other employees, a change from
previous rating periods when she acted only as a reviewing official.
RMO1 indicated that she did not consider complainant's work in previous
performance periods as rated by previous supervisors. She stated that
she expected a higher level of performance from complainant including
less editing and revision of his written products because he was a higher
graded employee and had more experience in writing final agency decisions.
She also stated that employees including complainant were too relaxed
in getting decisions written within the regulatory time frames and that
she wanted to push people to meet the requirement of issuing decisions
on time. RMO1 gave specific testimony about decisions complainant wrote
which failed to meet her standards. Although complainant points to
two other male employees, one White and one Black, who were similarly
rated Unacceptable, the record indicates that a White female employee
was rated minimally successful during the same time period.
According to the testimony of complainant's former supervisor (Puerto
Rican, female), RMO1 had different expectations in how the agency's final
decisions were written. She described the change she experienced in
adjusting to the writing style of RMO1 during the same time period and
that RMO1 reviewed her work in more detail than a previous supervisor.
Thus, she described treatment similar to that described by complainant
while working under RMO1. It was apparent from the record that RMO1
had a different style of writing and that her ratings of complainant
reflected these differences. They were not suggestive, however, of a
discriminatory motive.
The record of investigation outlined the ratings of employees by RMO1 in
the office which indicated that there was a range of ratings of White
and male employees at every level such that it could not be concluded
that complainant's rating was motivated by considerations of race
or sex. That is, for the rating period in question, RMO1 rated as
�Outstanding� one White male, one White female and one Black male.
She rated as �Exceeds expectations� one Black male, and as �fully
successful� one White male, one White female and two Black males.
She rated as minimally successful one White female. RMO1 rated as
�Unacceptable�, two White males and one Black male. Therefore, based
on the evidence as a whole, with respect to his performance evaluation,
the record does not support that complainant's rating was more likely
than not, the product of discriminatory animus based on his race and sex.
After receiving a rating of unacceptable, complainant was placed on a
performance improvement plan (PIP) and under the agency's regulations
could not receive a within grade increase. This occurred beginning in
January 1996 for a ninety day period ending in April 1996. During this
time period, RMO2 (Asian American, female) supervised complainant.
Complainant argues that being placed on a PIP was discriminatory because
it was precipitated by the discriminatory appraisal. Since we conclude
that complainant's rating was not based on discriminatory motives, we
also conclude that placing complainant on a PIP due to his unsatisfactory
performance was not discriminatory. The record discloses that complainant
successfully completed the PIP period and received his within grade
increase in April 1996.
Directed Reassignment
Complainant claimed that he was assigned to the Complaint Processing
Unit (CPU) which under a re-organization was placed under the Interior
Service Center (ISC). Complainant claims that this decision meant
that his job was in jeopardy because the work of the CPU was slated for
elimination under a proposed franchising agreement. Under the proposed
agreement the agency's work of processing complaints would have been
moved to another agency but the employees would not be reassigned.
The record on this issue does not support the complainant's assessment
and does not demonstrate that his assignment to the CPU was done with
discriminatory animus.
Specifically, the record established that nine employees were directed
to report to the newly established CPU under the supervision of RMO2,
and 10 were directed to report to the Policy Unit. Of those reporting
to the allegedly less desirable CPU, five were Black, four were White
and three were Hispanic. This indicated that not only White but a
substantial number of minority employees were also placed in this unit.
In the Policy Unit, the agency placed six Black, one White, one Hispanic,
and two Asian American employees. In addition, contrary to complainant's
claim that males were subjected to particularly harsh treatment and
given less desirable assignments, the report of investigation reflects
that five male employees were re-located to the Policy Unit.
Although the record reflects and RMO2 confirmed, that complaint processing
was being considered for outside contracting, the record indicated that
the franchising agreement was not ratified. Furthermore, there was no
evidence that the employees in the CPU were eliminated from the agency's
workforce thereby dispelling the argument that complainant's position
would be eliminated.
Other evidence that tended to prove the agency's actions with respect to
complainant's employment were not motivated by considerations of race
included the testimony of a Black female employee placed in the CPU.
She stated that under the reduction-in-force (RIF), however, a substantial
majority, 21 out of 32, of those who lost their jobs were Black.
The evidence suggested that employees of all races were affected by the
agency's downsizing not just those in complainant's protected class.
Complainant argued that the atmosphere in the office was permeated
by anti-White male sentiment and that White males were not favored in
the office. We find, however, that the statements to which complainant
alludes were either unreliable hearsay or were attributed to managers
too removed from complainant's direct supervisory chain. Moreover,
complainant failed to establish that such statements, if made, influenced
the decisions made by his own direct line supervisors.
Therefore, based on the evidence as a whole, we cannot conclude that the
decisions affecting complainant were more than likely based on his race
and sex.
Constructive Discharge
Complainant's claim that he was constructively discharged<1> because
of his age and in reprisal for his prior EEO activity must also fail.
In order to prove that he was constructively discharged, complainant
must show (1) the employer subjected him to working conditions that
a reasonable person in the employee's position would find intolerable;
(2) discriminatory conduct created the intolerable working conditions and
(3) the employee resigned involuntarily as a result of the intolerable
working conditions. See e.g. Ward v. Department of the Navy, EEOC
Appeal No. 03A00012 (November 19, 2001).
Complainant claims that only he was subjected to intolerable working
conditions because the office devoted too few resources to his area of
responsibility and that he was subjected to undue scrutiny. For these
reasons, he argues, he expected another negative performance appraisal
and felt compelled to leave. The record discloses that complainant
applied for a vacancy with another federal agency in the spring of 1996
near the end of the PIP period. Complainant successfully completed
the PIP in April 1996 and his within grade increase was approved during
that same month. Although complainant contends he received no written
indication that he had performed in a fully successful manner, we find
that he should have known of his successful completion based on receipt
of his within grade increase effective April 28, 1996.
Furthermore, the evidence does not support that complainant was
subjected to intolerable conditions such that a reasonable person would
involuntarily resign. Instead, the evidence reflects that the entire
office was affected by a staff shortage after 10 employees' positions
were eliminated during a RIF, and that the pressures associated with
this affected all employees not just complainant. As evidence of this,
many employees including RMO1 became responsible for drafting final agency
decisions along with their regular duties in order to assist complainant
and those in the CPU responsible for drafting final agency decisions.
Complainant complained that the absence of an automated tracking system
adversely affected his ability to efficiently track his cases, but the
testimony of other employees indicated they had the same difficulty.
Complainant's contention that he was subjected to age discrimination must
also fail because the record does not reflect that �but for his age�, he
would not have been forced to leave his position. See Loeb v. Textron,
600 F.2d 1003 (1st Cir. 1979) (requiring a showing that age was a
determinative factor, in the sense that "but for" age, complainant would
not have been subject to the adverse action at issue). Rather, the record
reflects that all but one employee in this office were over the age of 40.
In the allegedly more favorable Policy Unit, there were nine employees
over the age of 40 including one GS-14 employee age 60 at the time of
the investigation, and only one under the age of 40. Two employees in
the Policy Unit were age 47 at the time of the investigation.
Therefore, based on our consideration of the evidence as whole, we
conclude that complainant failed to demonstrate by a preponderance of the
evidence that his age influenced the decisions governing his employment
during the time in question.
Reprisal
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination. Specifically, complainant must show that:
(1) he engaged in a protected activity; (2) the agency was aware of
his protected activity; (3) subsequently, he was subjected to adverse
treatment by the agency; and (4) a nexus exists between the protected
activity and the adverse action. See Whitmire v. Department of the Air
Force, EEOC Appeal No. 01A00340 (September 25, 2000). In this case,
complainant established that he engaged in protected activity beginning
with his contact with an EEO counselor in December 1995, both RMO1
and RMO2 were aware that he had participated in protected activity and
arguably, he was subjected to adverse treatment when he was placed on
a PIP effective January 1996. Complainant failed to prove, however,
that there was a nexus between his protected activity and his ultimate
resignation from the agency. Many of the discussions between complainant
and RMO1 regarding his unacceptable performance and his ultimate rating
of unacceptable occurred beginning in June 1995, prior to complainant's
protected activity. The Commission has also found that many of the
incidents alleged to have created intolerable working conditions were
not due to intentional discrimination but resulted from the lack of
resources and a significant reduction in staff. We find, therefore,
that complainant failed to establish a nexus
between his EEO activity and the working conditions in the office or
his eventual resignation from the agency.
CONCLUSION
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 agency's
final decision.
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
June 25, 2002
Date
1The Merit Systems Protection Board (MSPB) has jurisdiction over mixed
case complaints which allege discrimination in a termination or separation
action. Complainant's claim of constructive discharge was potentially
an issue within the jurisdiction of the MSPB but because we find he did
not prove he resigned involuntarily, we decline to refer the matter to
the MSPB at this juncture. See e.g. Ward v. Department of the Navy,
EEOC Appeal No. 01994334 (December 21, 2001).