0120073089
09-14-2007
Barry A. McLendon, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Barry A. McLendon,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120073089
Hearing No. 430-2007-00049X
Agency No. DON-06-61463-01023
DECISION
Complainant filed an appeal with this Commission from the May 29, 2007
agency decision which implemented the April 25, 2007 decision of the
EEOC Administrative Judge (AJ) finding no discrimination.
In his complaint, complainant, a GS-11 Program Analyst and military
retiree, alleged that the agency discriminated against him on the bases
of race (African-American), sex (male), and color (black) when on April
7, 2006, he learned that his supervisor, a Supervisory Environmental
Engineer, had not endorsed his nomination for the first quarter Fiscal
Year 2006 Employee of the Quarter Award.1
At the conclusion of the investigation, complainant requested a hearing.
Over complainant's objections, the AJ granted the agency's motion for
a decision without a hearing (summary judgment).
In her decision finding no discrimination, the AJ found that complainant
had failed to present a prima facie case of discrimination because
complainant had not shown that he was treated less favorably than
other similarly situated employees or that a reasonable inference of
discrimination could be drawn. In so finding, the AJ noted that the
employees who were selected for the Employee of the Quarter (EOQ) Award
for the two quarters for which complainant was an eligible nominee were
assigned to a different section and supervised by a different supervisor.
The AJ also noted that the one employee endorsed by complainant's
supervisor for the award ultimately received the award in a subsequent
quarter and was an African-American female. The AJ further found that
even if complainant had presented a prima facie case, the agency had
articulated a legitimate, nondiscriminatory reason for its action and
complainant had failed to show that the agency's articulated reason was
pretext to hide unlawful discrimination. Specifically, the AJ found
that complainant's supervisor declined to endorse complainant because
she discovered him sleeping at his desk and because of his lack of
communication with her. The AJ also noted that although complainant
contended that his sleeping did not occur until after his nomination
had not been endorsed, the supervisor had observed complainant sleeping
in August 2005 and January 2006, and she was not asked to endorse
complainant's nomination until February 2006. Regarding complainant's
assertion that he communicated with his superiors by way of electronic
mail and that such communication was acceptable and appropriate, the
AJ noted that the supervisor's expectation that complainant should
communicate with her verbally when she needed spreadsheet or other
information explained in more detail was not unreasonable. The AJ
concluded that complainant had failed to show by a preponderance of the
evidence that the agency had discriminated against him.
The record reveals that a fact-finding conference was convened by the
agency investigator. At the fact-finding conference, complainant
stated that he believed that he was discriminated against because his
supervisor singled out African-Americans, consciously or unconsciously,
to harass them. He also stated that he knew that his supervisor
discriminated against him because every product that he generated,
such as spreadsheets, was scrutinized to the letter. Complainant
stated further that anything which could possibly be construed as being
incorrect, his supervisor brought to his attention. He stated that it
seemed as if she intentionally looked for errors or lapses on his part.
Complainant also stated that prior to a counseling incident in 2006,
his supervisor had not counseled him on any shortcomings, ineffective
work, or communication during the quarter for which he was nominated.
Regarding the process for the nomination and award, complainant stated
that he was nominated by a co-worker and that once the nomination was
made, his nomination with supporting documentation, was reviewed by
a panel. He also stated that he was selected by the panel but that when
his name was submitted to his supervisor for her endorsement, she did
not endorse him. Complainant stated that he did not know whether his
supervisor had endorsed any other employee prior to her not endorsing
him. He stated further that the four employees who were nominated and
selected for the award prior to his nomination were Caucasian, two males
and two females. He stated also that his supervisor did not supervise
the four previous selectees and had nothing to do with their selection.
He stated that his second level supervisor had to endorse the selectees
as part of the award process.
Regarding sleeping at work, complainant stated that he dozed off during
training because of the temperature in the room. Complainant stated
that his supervisor mentioned to him about communication, telling him
that electronic mail was not acceptable because she did not have time
to read it.
The Waste Program Manager for the Regional Environmental Group
(nominator), who nominated complainant for the EOQ award stated
that his group was overseeing projects which required funding and
that complainant was responsible for funding and tracking funding
expenditures and planning for funding. The nominator also stated that he
and complainant's supervisor were co-workers and complainant had never
been under the nominator's supervision. He stated that he nominated
complainant because he was very helpful in providing information for
funding and responding to data calls. The nominator further stated that
complainant's performance warranted recognition and that a lot of times
complainant had gone beyond the nominator's expectations. He stated that
when he learned that complainant was not selected, he was surprised.
Complainant's supervisor stated that complainant was not selected by
the panel for the fourth quarter of 2005, but was selected for the first
quarter of 2006. Complainant's supervisor stated that complainant was
observed sleeping at work on two occasions in late January 2006, and
that he was counseled about his sleeping during his mid-year review on
February 2, 2006. She stated that complainant did not refute that he
was sleeping. Complainant's supervisor further stated that complainant
was counseled during his mid-year review about poor communication and
he did not refute her observation and stated that he was working on his
communication. Complainant's supervisor stated that the occasions of
verbal communication with complainant were very rare and when it occurred,
she was the initiator. She also stated that complainant exhibited the
same behavior with team leaders. Complainant's supervisor stated that
complainant's electronic mail communications to her were not frequent
and that prior to his nomination, he had been spoken to about his poor
communication several times while her team leaders were in attendance.
She also stated that complainant's second level supervisor also was
unhappy with complainant's communication and with his data being incorrect
and had asked in August 2005, that complainant be placed on a Performance
Improvement Plan. Complainant's supervisor stated that she did not
believe that she had spoken to complainant about his sleeping prior to
February 2006. She also stated that complainant needed to explain data
sent by electronic mail and that he could not have spreadsheets with
all kinds of data without providing verbal input.
Complainant's supervisor stated that her not endorsing complainant
had everything to do with his sleeping at work, his not communicating,
and his presenting inaccurate data. She also stated that she and the
spending program were under a lot of scrutiny and the information that
complainant provided was disseminated publicly and she had to explain the
spreadsheets that he assembled. Complainant's supervisor also stated
at the fact-finding conference that she was under a lot of pressure
to ensure that all of the data was correct and that money was being
spent properly and promptly. Regarding her performance evaluations of
complainant which were all acceptable, she stated that she was directed
by her supervisor not to make negative comments on evaluations.
Complainant's supervisor stated that complainant was the first employee
under her supervision whose name was submitted for her endorsement for
the award and that she subsequently endorsed an African-American female.
In her affidavit, complainant's second level supervisor, who was the
Director, stated that she did not approve selections for the EOQ and
that only the first level supervisor did so. She stated that typically
her involvement was limited to being told who was selected. She further
stated that she was not asked to endorse any employees selected during
the second, third, and fourth quarters of 2005, or during the first
quarter of 2006.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a
case can only be resolved by weighing conflicting evidence, issuing a
decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
He must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may
be dispensed with where the agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997). To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation is a
pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981).
As an initial matter, the Commission notes that because this is a decision
rendered without a hearing, the AJ's legal and factual conclusions and
the agency's decision are reviewed de novo. See 29 C.F.R. � 1614.405(a);
EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
Upon review, we find that the grant of summary judgment was proper.
Construing the evidence in the light most favorable to complainant,
the Commission cannot find, under the circumstances of this case,
that discriminatory animus motivated complainant's supervisor in not
endorsing him. A review of the evidence suggests that the relationship
between complainant and his supervisor became strained and this led
complainant's supervisor to withhold her endorsement of complainant.
At all times, the ultimate burden of persuasion remains with complainant
to demonstrate by a preponderance of the evidence that the agency's
reasons were pretextual or motivated by intentional discrimination.
Complainant failed to carry this burden.
The agency's decision finding no discrimination is AFFIRMED.
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
September 14, 2007
__________________
Date
1 The record reveals that five other claims of the complaint were
dismissed on procedural grounds by the agency in a June 16, 2006 agency
Notice of Acknowledgment for Investigation and Dismissal of Claims. In
her decision, the AJ noted that because complainant failed to oppose
the dismissal of those claims within 30-days as set forth in the AJ's
Acknowledgment and Order, complainant had waived his opportunity to have
the dismissal reviewed by her.
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0120073089
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036