01A33842
01-26-2005
Christopher L. Stansbury, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Christopher L. Stansbury v. Department of Veterans Affairs
01A33842
January 26, 2005
.
Christopher L. Stansbury,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A33842
Agency No. 200K-0328-2002102212
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final decision 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. For the following reasons, the Commission REVERSES the agency's
final decision.
BACKGROUND
The complainant was employed as a Veterans Service Representative,
GS-996-7, at the VA Regional Office in Chicago, Illinois. The complainant
filed a complaint alleging race discrimination when he was not granted
a career ladder promotion on his anniversary date and when he was placed
on a pre-Performance Improvement Plan and Performance Improvement Plan.
The agency accepted the claim of non-promotion (career ladder) to the GS-9
grade level and placement on a pre-Performance Plan (PIP) on November 2,
2001 and PIP on January 2, 2002. The record shows that the complainant
was promoted from GS 7 to a GS 9, effective April 7, 2002, a year after
he was eligible.
At the conclusion of the investigation, the 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. The complainant
requested a hearing, and subsequently the complainant filed a �Summary
Judgment/Motion.� The AJ construed the complainant's motion for summary
judgment as a waiver of his right to a hearing, rather than as a request
that the Administrative Judge grant summary judgment in complainant's
favor. According to the docket entry, the AJ construed the complainant's
request for a hearing as withdrawn. The AJ �closed� the matter and
returned the case to the agency for a final agency decision (FAD).
In its FAD, the agency found no discrimination, concluding that
any adverse treatment of the complainant was based on complainant's
performance related issues and the supervisor's managerial style.
The complainant did not file a statement in support of his appeal.
The agency requests that we affirm its FAD.
As further background, the record reveals that the complainant began
employment as a Veterans Service Representative, GS-996-7 in a career
ladder position with promotion potential to GS-9. The complainant was
assigned to Team 4 under the supervision of RMO1 (Hispanic female).
Several months prior to the complainant's eligibility for a career
ladder promotion, RMO1 promoted two Caucasian co-workers on the
complainant's team to GS-9 after one year of satisfactory service, but
the complainant was not promoted on his anniversary date. Five months
after his anniversary date, the complainant inquired as to why he had not
been elevated to GS-9, as the Caucasian employees on his team had been.
After the complainant raised questions regarding why he was not promoted,
the complainant was informed by the agency's Human Resources Office that
there had been no direction from his supervisor to advance him to the
next level. The complainant then requested a transfer to a different
team, which request RMO1 denied.
In October 2001, the complainant was off for two weeks leave. Prior
to that time, the complainant had not been counseled about any lack of
performance or productivity problems. The record contains two documents,
performance evaluations (signed by the RMO1) which showed successful
performance. The record does not reflect any performance problems up
to the complainant's anniversary date when he was eligible for promotion.
On November 2, 2001, RMO1 placed the complainant on a pre-Performance
Improvement Plan (pre-PIP). The pre-PIP was imposed five months after the
time when the complainant was eligible to be promoted. The complainant was
transferred to a new coach, and although the complainant was no longer
under RMO1's supervision,, RMO1 placed the complainant on a Performance
Improvement Plan (PIP) on January 2, 2002.
The record also reflects that RMO1 had a reputation for her different
treatment of blacks, and the reputation was �common knowledge.� A
Caucasian employee who was not meeting production was moved to another
team, rather than being placed on a PIP. The record contains evidence
that Caucasian Veteran Service Representatives were �fed� the type of
cases that would give them the numbers needed to meet the production
standards, while the complainant was not. Within the preceding relevant
time frame (6/99 to 7/01), the only men promoted were Caucasian; and
the only African-Americans who were promoted were female.
The agency contends that it did not question the quality of the
complainant's work, just the quantity. At no point in the complainant's
position description is timeliness or quantity of production
referenced. Further, the record shows that the complainant worked
under the close supervision of a coach, and the coach did not view the
complainant as having a productivity problem. The evidence shows that the
agency's policy was that an employee was to receive day-to-day on-the-job
training and have their work subject to review. The record shows that
the Caucasians were given assignments that showed up in the database,
but the complainant's work was not credited toward productivity because
of the nature of the assignments given to him. The agency conceded that
the two white comparators received more intense training.
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim such as this, the 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 may
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). In order to establish a prima
facie case of discrimination, the complainant must show that he was
treated less favorably than similarly situated employees who were not
of his race (African-American).
Applying these standards, we find that the record evidence established a
prima facie case of race discrimination with regard to the complainant's
non-promotion and his placement on the pre-PIP and PIP. The complainant
has shown that he was not granted promotion on his anniversary date and
that two similarly situated Caucasian co-workers were promoted on their
anniversary dates. With regard to the pre-PIP and PIP claims, the record
also shows that the complainant was placed on a pre-performance plan while
others, not of his race, who had performance problems were not placed on
a pre-PIP or PIP. The record further shows that the delay in promotion
and placement on the PIP changed the conditions of his employment and
disadvantaged the complainant.<1>
In this case, 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).
The agency asserts that the complainant's production was significantly
less than what was expected in terms of timeliness and quantity.
To ultimately prevail, therefore, the 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); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department
of the Navy, EEOC Request No. 05950351 (December 14, 1995).
We find that the preponderance of the evidence shows that the agency's
articulated reason (quantity of work) is a pretext for discriminatory
race-based animus. In support of our conclusion, we note that �quantity�
was not part of the complainant's performance standard, and that
the only documentary evidence provided by the agency shows that the
complainant received a �successful� for his evaluation for the period
through September 30, 2001. In addition, the record evidence shows
that the complainant was performing at a higher level than the level
credited to him by his supervisor. We also note that the team coach
did not have any issue with the complainant's quantity of work. The
record further shows that RMO1 was not providing the complainant with
the kinds of assignments that would be reported. Although RMO1 says that
she did not consider the complainant ready for promotion, we note that
as of the date that the complainant was eligible for advancement (June
2001), the record does not provide any legitimate basis for denying the
complainant a career ladder promotion. RMO1 promoted Caucasian employees
with known performance problems. Finally, we note that the stated reason
(productivity) used to justify the delayed career ladder promotion only
arose as an issue after the anniversary date had passed. RMO1 conceded
that she had not counseled the complainant regarding her perception of
poor production and that she had not provided the complainant with the
level of training provided to others not of his race.
The record shows that the agency's stated reasons lack credibility
because of the supervisor's prior history. The statements of several
witnesses confirm that the named responsible management official had
a reputation of treating the African-American employees less favorably
than Caucasian or Hispanic employees. The FAD at page 11 acknowledges
that there had been prior complaints against the same supervisor �three
or four times during the past couple of years.�
Taken in its totality, the evidence supports the race claims. Our careful
review of the record has persuaded us that the agency, through its
manager, has subjected the complainant over a sustained period of time
to race discrimination that tainted and motivated the actions taken by
the agency officials towards him because he is a Black male and because
he objected to the discrimination.
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 reverse the agency's
final decision. The agency is to take remedial actions in accordance
with this decision and the Order set forth below.
ORDER (E0900)
The agency is ORDERED to take the following remedial actions to the
extent that the actions have not already been taken:
No later than thirty (30) calendar days after the date this decision
becomes final, the agency shall retroactively place the complainant in a
career ladder promotion, GS-9, effective June 5, 2001 with retroactive
back pay and provide any subsequent career ladder promotions to which
he was entitled during the pendency of this action.
No later than sixty (60) calendar days after the date this decision
becomes final, the agency is directed to provide eight hours of training
for RMO1 who engaged in the race discrimination. The agency shall
address this supervisor's responsibilities with respect to prohibiting
and refraining from discrimination in the workplace. The RMO1 shall
receive a minimum of eight (8) hours of EEO training with respect to
Title VII to ensure that acts of retaliation are not taken against any
employee who opposes unlawful discrimination, and that persons reporting,
assisting or challenging acts perceived to be unlawful are treated in
a lawful manner in accordance with Title VII.
No later than sixty (60) calendar days after the date this decision
becomes final, the agency is to determine whether disciplinary action
against the responsible individual discussed herein is appropriate. The
agency shall record the basis for its decision to take or not to take
such actions, and report the same to the Commission in the same manner
that the implementation of the rest of the order is reported.
No later than thirty (30) calendar days after the date this decision
becomes final , the agency shall review the complainant's personnel
record / file and remove any negative comments or evaluations for the
period pertinent to the pre-PIP, the PIP and the non-promotion and
provide complainant with a copy of his personnel file.
No later than thirty (30) calendar days after the date this decision
becomes final, the agency shall post the attached notice.
The agency shall pay reasonable attorney's fees, as reflected below.
The agency shall conduct a supplemental investigation on the issue
of the complainant's entitlement to compensatory damages and shall
afford the complainant an opportunity to establish a causal relationship
between the discrimination and hostile environment and any pecuniary or
non-pecuniary losses. The complainant shall cooperate in the agency's
efforts to compute the amount of compensatory damages, and shall provide
all relevant information requested by the agency. The agency shall
afford the complainant sixty (60) days to submit evidence in support
of her claim for compensatory damages. The agency shall issue a final
decision on the issue of compensatory damages 29 C.F.R. � 1614.110.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled �Implementation of the Commission's
Decision.� The report shall include supporting documentation of
the agency's calculation of back pay and other benefits due the
complainant, including evidence that the corrective action ordered has
been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its VA Regional Office in Chicago,
Illinois facility copies of the attached notice. Copies of the notice,
after being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
January 26, 2005
__________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found that a
violation of the Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of that person's RACE, COLOR,
RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY
with respect to hiring, firing, promotion, compensation, or other terms,
conditions, or privileges of employment.
The United States Department of Veterans Affairs in Chicago, Illinois
supports and will comply with such Federal law and will not take action
against individuals because they have exercised their rights under law.
The United States Department of Veterans Affairs in Chicago, Illinois
has been found to have discriminated against the individual affected
by the Commission's finding. The United States Department of Veterans
Affairs in Chicago, Illinois shall provide the affected individual
with retroactive promotion, tender back pay and benefits, pay proven
compensatory damages, and pay reasonable attorney's fees and costs.
The United States Department of Veterans Affairs in Chicago, Illinois
will ensure that officials responsible for personnel decisions and
terms and conditions of employment will abide by the requirements of
all Federal equal employment opportunity laws and will not retaliate
against employees who file EEO complaints.
The United States Department of Veterans Affairs in Chicago, Illinois
will not in any manner restrain, interfere, coerce, or retaliate against
any individual who exercises his or her right to oppose practices made
unlawful by, or who participates in proceedings pursuant to, Federal
equal employment opportunity law.
______________________________
Date Posted: ____________________
Posting Expires: _________________
1 We note that by itself, placement on a PIP may not state a claim,
under 29 C.F.R. �1614.107(a)(5), but, in the instant case, we find it
to be intertwined with the non-promotion claim.