0120130907
05-14-2015
Complainant, v. Earl A. Powell, III, Director, National Gallery of Art, Agency.
Complainant,
v.
Earl A. Powell, III,
Director,
National Gallery of Art,
Agency.
Appeal No. 0120130907
Agency No. 09-01
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's October 31, 2012 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 a Painter at the Agency's Office of Facilities Management Paint Shop (AFM-PA) in Washington, D.C.
On October 17, 2008, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the bases of race (Caucasian), age (over 40), and in reprisal for prior EEO activity when:
1. he received a notice of decision of a three-day suspension dated July 11, 2008;
2. on April 24, 2009, he received a letter of decision stating that he would be suspended from pay and duty status for ten workdays;
3. (a) he was issued a progress review of his performance on April 15, 2009, which was documented on the Performance Plan Form NGS 430B, and (b) he received the Performance Plan dated April 13, 2009, and received by him on April 21, 2009; and
4. (a) he was told that some employees were told to not speak with the painters in the AFM Paint Ship because Complainant is going to be fired, and (b) he was issued an "unacceptable" performance rating.1
After the investigation of the instant formal complaint, Complainant was provided with a copy of the report of the investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ) or a final decision within thirty days of receipt of the correspondence. Complainant requested a hearing. By an Order entitled "Order of Dismissal," the AJ cancelled the hearing request. The AJ found that Complainant did not respond to the Agency's Production Requests and interrogatories. The AJ remanded the formal complaint to the Agency, and the Agency issued the instant final decision, pursuant to 29 C.F.R. 1614.110(b), on October 31, 2012.
In its final decision, the Agency found that Complainant did not show by a preponderance of the evidence that he was discriminated against on the bases of race, age and retaliation. The Agency further concluded that Complainant did not prove, by a preponderance of the evidence, that the Agency's proffered reasons for its actions were 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 complainant has shown by a preponderance of the evidence that the 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).
Agency management articulated legitimate, nondiscriminatory reasons for its actions. The Paint Shop Supervisor stated that during the relevant time, he was Complainant's supervisor. The supervisor stated that in regard to claim 1, Complainant was issued a letter of decision concerning a three-day suspension for insubordination. The supervisor stated that on March 31, 2008, he asked Complainant "to come into my office so I could issue him a Letter of Counseling. This letter was in response to the safety violations involving the unsafe use of the ladder. [Complainant] initially refused to enter my office without union representation. After I informed [Complainant] that union representation was not required for the issuance of the Letter of Counseling, he became irate. I then called security, who then escorted [Complainant] out of the building. I later wrote up the incident and proposed a five-day suspension for insolence and insubordination. This proposed suspension was then reduced to three days in the decision."
The record reflects that by decision dated July 11, 2008, the Engineering Department Manager (Manager) upheld the charge of insubordination, but not the charge of insolence. In finding that Complainant was insubordinate, the Manager relied on evidence from two employees that Complainant stood in the doorway to the supervisor's office and refused to sit down or enter his office. Although the supervisor told Complainant he was not entitled to union representation for a letter of counseling, the Manager found that Complainant may have asked for a union representative more than once. Further, the Manager determined that when given a direct order, Complainant must follow it and file a grievance later. The Manager cited Complainant's ongoing unwillingness to receive feedback and counseling regarding his performance.
Regarding claim 2, the supervisor stated that in February 2009, he proposed that Complainant and two other painters be suspended for ten days. Specifically, the supervisor stated that the basis for the recommendations "include[ed]: failure to follow instructions, unprofessional conduct, negligent delay in the performance of assigned duties, and insubordination." The supervisor stated that Operations Department Manager was the deciding official. The supervisor further stated "ultimately, [Complainant] received a ten-day suspension, [another named painter] received a ten-day suspension, and [another named painter] received a seven-day suspension. My decision to submit the suspension proposals was based solely on the conduct of [Complainant and the named painters]. My decision was not based on age or race. In addition, I have never made any derogatory comments concerning age or race."
The Operations Department Manager stated that after evaluating the data, he decided to uphold the suspensions of Complainant and [one named painter] "but decided to reduce the suspension of [another named painter] from ten (10) days to seven (7) working days. I decided to reduce [one painter's] suspension because the information obtained my evaluation did not corroborate the details presented in [supervisor's] proposal concerning [painter]." I cannot recall the exact details that prompted me to reduce [the painter's] decision."
Regarding claim 3, the supervisor stated that he uses the employees' position description and the Performance Elements & Standards established by the Facilities Management Division. The supervisor further stated "we utilize a pass/fail system in evaluation work performance with grades of 'Acceptable' or 'Unacceptable.' I write a synopsis of the rated employee's performance under each performance element and apply the corresponding performance standards."
Complainant asserted that when the supervisor provided him with his progress review on April 15, 2009, the supervisor asked Complainant to sign the review without discussing his performance with him. However, the supervisor stated that Complainant's assertion is untrue. I conducted his mid-year performance review, I asked him if he would like to discuss anything in regard to his performance up until that time and he responded, 'no.'" The supervisor further stated that his informal progress review included "several general areas of observed performance deficiencies that I wanted [Complainant] to correct."
With respect to Complainant's asserted that the performance plan the supervisor provided him on April 21, 2009, afforded him no opportunity to participate in its formulation, the supervisor stated the performance elements and standards were already established before he started working for the Agency. The supervisor further stated "because AFM has a pass/fail performance evaluation system, the Performance Elements & Standards are the same for every AFM employee. Additionally, [Complainant] received his Performance & Elements long before April 21, 2009. If I gave [Complainant] his Performance Elements & Standards on April 21, 2009, it was merely a reissuing of it. At no time has [Complainant] asked me about reworking his Performance Elements & Standards."
Regarding claim 4, the supervisor stated "I have told no one that we will be firing any one of these painters. I did tell [a named Agency official], [a named Carpenter Shop Supervisor], and [a named Mason Shop Supervisor], that I planned to propose disciplinary action against these painters which may include proposing their removal. These conversations were in the last six weeks. [Carpenter Shop Supervisor] and [Mason Shop Supervisor] are my peers. I was discussing with them in confidence the difficulty I was experiencing with these employees. They previously discussed with me problems they had with their employees. I should also add that I have had a series of comprehensive conversations with the Gallery's Employee Assistance Program (EAP), about my staff, my frustration with their performance and conduct, as well as the stress that it has created for me."
Further, the supervisor stated that during the relevant period Complainant was "one of three employees on my five person staff who has been rated unacceptable in FY2008 and FY2009. The other employees also rated unacceptable are grade 10 painters, whereas [Complainant] is a grade 9 painter. I note, however, that the work for which all three painters were found deficient was contained well within the grade 9 position description. Indeed there was nothing fundamentally complex about the work for which all three painters were determined to be deficient in their performance."
The supervisor stated "I have consistently counseled [Complainant] regarding his deficient performance and his poor conduct. [Complainant] has responded negatively or remained oblivious to his shortcomings. Since the start of my Gallery tenure, I have attempted to foster a positive approach towards my staff. I have been consistent in providing a daily morning meeting to go over the day's work, discuss potential problems, and to motivate my staff to work with enthusiasm...I have repeatedly explained to [Complainant] my expectations both in terms of performance and conduct. I have told him that I am determined to work with him on achieving a positive outcome. However, my efforts appear to have fallen on deaf ears. I have been met with the intentional refusal to follow orders and answer questions; negligent performance of even basic tasks, hostility, and unprofessional conduct."
Based on our independent review of the evidence and careful consideration of Complainant's arguments on appeal, we find that the responsible Agency official articulated legitimate, nondiscriminatory reasons for the disputed actions, which Complainant failed to prove, by a preponderance of the evidence, were pretext designed to mask retaliatory animus as a motivating factor. Beyond his bare assertions, Complainant has produced no evidence of disparate treatment or other evidence indicating unlawful retaliation occurred.
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 unlawful retaliation 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
May 14, 2015
__________________
Date
1 The record reflects that race and age as bases and claims 2 - 4 were later amended to the instant formal complaint.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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