01982522jerome
01-09-2001
Daino H. Jerome, Complainant, v. Aida Alvarez, Administrator, Small Business Administration, Agency.
Daino H. Jerome v. Small Business Administration
01982522
January 9, 2001
.
Daino H. Jerome,
Complainant,
v.
Aida Alvarez,
Administrator,
Small Business Administration,
Agency.
Appeal No. 01982522
Agency No. 03-93-373
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 Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. � 791 et seq.<1> The appeal is accepted pursuant to 29 C.F.R. �
1614.405.<2> Complainant alleged that he was discriminated against on
the bases of race (yellow), national origin (Japan and American Indian),
age (over 40 years of age), disability (hearing), and retaliation,
including harassment, when: (1) he was denied promotion to GS-13; (2)
performance standards were applied differently for complainant than they
were for similarly situated co-workers; (3) he received an unacceptable
performance rating for fiscal year 1992; (4) adverse material was put into
his personnel file (i.e., that complainant had a speech impediment); and
(5) he was the victim of racial slurs (i.e., called �wool-fat� (Chinese
character) and �Wine Vega� [Winnebago] (car) by his supervisor.
BACKGROUND
The record reveals that during the relevant time, complainant, born
May 24, 1949, was employed as a special agent/criminal investigator,
GS 1811-12, at the agency's Office of Inspector General, Investigation
Divisions. Believing he was a victim of discrimination, complainant
sought EEO counseling and subsequently filed a formal complaint on
March 23, 1993. 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.
While it appears that complainant requested a hearing, there is no record
that a hearing was held.<3> The agency issued a final agency decision
(FAD) on January 16, 1998.
At the time of the complaint, complainant was detailed to the agency's
Chicago, IL, Field Office. Complainant had previously been assigned
to the agency's Dallas, TX, Field Office. While at the Dallas Field
Office, he had been terminated for poor performance on August 9, 1991, but
reinstated on February 2, 1992, by order of the Merit Systems Protection
Board (MSPB). Upon reinstatement, he was detailed to the Chicago Field
Office.
In its FAD, the agency concluded that complainant had not been
discriminated against. With respect to the promotion allegation, the
agency found that complainant never asked about vacancy announcements,
and that, in any event, would not have been promoted because of
his poor work performance. With respect to the disparate treatment,
involving his performance standards, the agency found that complainant
provided no objective evidence to support this claim. Concerning his
�unacceptable� performance rating for FY 1992, for his employment at
the Chicago Field Office, the agency submits that the MSPB subsequently
ruled that complainant's detail to the Field Office was in violation of an
MSPB's previous decision, which had ordered complainant's reinstatement,
and thus no action was taken by the agency regarding the �unacceptable�
rating. With respect to the last two allegations, the agency takes the
position that they were previously litigated before the MSPB, and then
submits that because the MSPB case was subject to a protective order,
none of the rulings or evidence introduced in those proceedings were
admissible into evidence.
On appeal, complainant points out that he was wrongfully discharged on
August 9, 1991, by the agency in retaliation for exposing wrongdoing
under the Whistleblower Act, and that he was reinstated on February
2, 1992, by order of the MSPB. According to complainant, the agency
requested that the MSPB proceeding, and its related investigation by the
Federal Protective Service, be sealed under a protective order to �save
embarrassment� for the current and former managers' false statements and
testimonies. The complainant argues that the agency should therefore
be barred from using any statements of the management employees, who
testified before the MSPB, for purposes of the FAD. The complainant
further emphasizes that the MSPB case would have disclosed information
relevant to the discrimination case, since the position of the agency
before the MSPB was that complainant was a poor performer. With respect
to the promotion allegation, complainant argues that he was not made aware
of any promotions or vacancies, and that in his view, his supervisor's
objective was to terminate him. Concerning the performance standards
allegation, complainant points to new evidence discovered in January 1998,
and dated May 16, 1997, concerning an affair between a supervisor and
subordinate with rewards of favorable assignments, performance ratings,
promotion, and supervision. In addressing the racial slurs allegation,
complainant refers to a Grievance Report to his attorney dated February
17, 1990, which had been prepared pursuant to the MSPB litigation,
leading to his reinstatement. Complainant also submits this Report for
purposes of the present case generally. The agency did not file a reply.
FINDINGS AND ANALYSIS
The MSPB Proceeding
Complainant, on appeal, appears to believe that this is a mixed case
proceeding and that he therefore may properly include, at this time,
issues and matters litigated or that could have been litigated in the
MSPB proceeding. Even assuming arguendo complainant has raised a mixed
case complaint,<4> the complainant had 30 days from receipt of the final
decision of the MSPB to petition the Commission to consider the decision.
29 C.F.R. � 1614.303(c). Complainant did not petition the Commission to
consider any aspect of the MSPB decision within the required 30 days.
Accordingly, under the doctrine of claim preclusion (res judicata)<5>
and issue preclusion (collateral estoppel)<6> the present complaint
must be circumscribed, on the merits, to embrace only those claims
that were either not litigated or could not have been litigated in
the MSPB proceeding. See EEOC Compliance Manual on Threshold Issues,
�2 at 2-92 through 98 (May 12, 2000). We therefore do not address
the complainant's allegations, e.g., non-promotion, application of
performance standards, adverse performance ratings, etc., insofar as they
relate to complainant's August 9, 1991, termination in the proceeding
before the MSPB. See Grievance Report from complainant to his attorney
dated February 26, 1990 (Exhibit 3 attached to complainant's appeal).
Essentially, we address complainant's allegations insofar as they relate
to actions by the agency after he was reinstated by the MSPB.
The Sealing of the MSPB Proceeding
Complainant argues that the agency should be sanctioned by its failure
to unseal the records in the MSPB proceeding. EEOC Regulation 29 CFR
� 1614.108(c)(3) provides that where the agency �fail[s] without good
cause shown to respond fully and in [a] timely fashion to requests
for documents, records, comparative data, statistics, affidavits,
or the attendance of witness(es), . . . the Commission on appeal may,
in appropriate circumstances [ ] draw an adverse inference that the
requested information, or the testimony of the requested witness, would
have reflected unfavorably on the party refusing to provide the requested
information.� Complainant did not indicate with any specificity what
information he sought to have unsealed by the agency. Indeed, the
record does not show any specific request for evidence by complainant
made to the agency. Nor does complainant show he has been harmed by the
failure to unseal the records in the MSPB proceeding. Furthermore, it is
well settled that engaging in generic whistle-blowing is not protected
EEO activity. Accordingly, we do not find that the agency should be
sanctioned by its failure to seek to unseal the records in the MSPB
proceeding and decline to draw an adverse inference against the agency.
Merits of the Case
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973); Prewitt v. USPS, 662 F.2d 292 (5th
Cir. 1981) (disability cases); 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); 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).
A complainant must first establish a prima facie case of discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination, i.e., that a prohibited reason was
a factor in the adverse employment action. McDonnell Douglas, 411
U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).
Next, the agency must articulate a legitimate, nondiscriminatory reason
for its action(s). Texas Department of Community Affairs v. Burdine,
450 U.S. 248 (1981). After the agency has offered the reason for its
action, the burden returns to the complainant to demonstrate, by a
preponderance of the evidence, that the agency's reason was pretextual,
that is, it was not the true reason or the action was influenced by
legally impermissible criteria. Burdine, 450 U.S. at 253; St. Mary's
Honor Center v. Hicks, 509 U.S. 502 (1993).
Complainant may establish a prima facie case of discrimination by showing
that he is a member of a protected group and that he was treated less
favorably than other similarly situated employees outside her protected
group. See Potter v. Goodwill Industries of Cleveland, 518 F.2d 864,
865 (6th Cir. 1975). Complainant may also set forth evidence of acts
from which, if otherwise unexplained, an inference of discrimination
can be drawn. Furnco, 438 U.S. at 576.
The 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. U.S. Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-14 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 05900159 (June 28, 1990).
1. Non-Promotion
The agency has articulated a legitimate, nondiscriminatory reason
for its failure to promote complainant to GS-13, i.e., that the
complainant was a poor performer, and thus essentially that those
promoted were better qualified than complainant. Complainant has
not shown pretext. Complainant does not argue that he was at least as
well or better qualified than those individuals selected for promotion.
Furthermore, complainant's FY 1992 PMAS Performance Rating (Investigation
Exhibit 16) (rating period 3/24/92 to 9/30/92) finds that complainant
was rated �Unacceptable.� He was rated �Fully Successful� on two
critical elements (�Prepares Investigative Plan� and �Maintains all Case
Documentation�). He was rated �Unacceptable� on one critical element
(�Conducts Complex Investigations�). This assessment was done by the
Special Agent in Charge (SAIC) in the Chicago Office for work complainant
had done while in Chicago. According to the SAIC, for anyone rated
unacceptable in one critical element, the person's overall rating would
be unacceptable. The rating official attached a two-page narrative in
justification of the �unacceptable rating.� Investigation Exhibit 16
also includes a Performance Improvement Period letter dated January
15, 1993, with considerable detail as to the agency's expectation of
complainant's improvement of performance for the future, as well a
discussion of complainant's past performance deficiencies. Complainant
has not attempted to rebut the specific
deficiencies outlined in the PMAS Performance Rating or the Performance
Improvement Period letter dated January 15, 1993.<7>
2. Application of Performance Standards.
The agency has articulated a legitimate, nondiscriminatory reason for
its application of performance standards, i.e., that the application was
based on complainant's work and performance. The FAD found that there
was no evidence to support complainant's claim. Complainant, on appeal,
points to a memorandum, dated May 16, 1997, from a special agent in the
Los Angeles Field Office to the SAIC of the Los Angeles Field Office,
essentially involving matters in that Office. The memorandum does
not relate to the application of performance standards, concerning
complainant and the Chicago Field Office. Complainant has not proven
beyond his mere assertion, nor does the record contain evidence that
complainant was discriminated against in the agency's application of
its performance standards. As previously indicated, complainant has
not attempted to rebut the specific deficiencies outlined in the PMAS
Performance Rating or the Performance Improvement Period letter dated
January 15, 1993. Under such circumstances, we conclude that complainant
has not shown pretext.
3. �Unacceptable� Performance Rating.
The agency primarily relies on the fact that no action was taken by
it, concerning complainant's work performance in Chicago, because
the MSPB found the detail to Chicago to be in violation of the MSPB's
reinstatement decision. Even so, the agency has articulated a legitimate,
nondiscriminatory reason for the issuance of the �unacceptable�
performance rating, i.e., that the rating was based on complainant's work
and performance. As previously indicated, complainant has not attempted
to rebut the specific deficiencies outlined in the PMAS Performance
Rating or the Performance Improvement Period letter dated January 15,
1993, which was intended to be in effect from January 1993 to March 1993.
Therefore, we conclude that complainant has not shown pretext.
4. Adverse Material in Complainant's Personnel File
Complainant alleges that someone put information into his personnel file,
indicating that he had a speech impediment. The FAD concluded that this
was previously litigated before the MSPB. Complainant does not dispute
this finding on appeal, and we have no reason to believe otherwise.
We therefore need not further address this matter.
5. Retaliation (including the Racial Slurs allegation)
With regard to retaliation discrimination, the Commission has stated
that:
The anti-reprisal provision of Title VII protects those who participate
in the EEO process and also those who oppose discriminatory employment
practices. Participation occurs when an employee has made a charge,
testified, assisted, or participated in any manner in an investigation,
proceeding or hearing. Participation also occurs when an employee files
a labor grievance, if the employee raised issues of unlawful employment
discrimination in the grievance. . . . A variety of activities has been
found to constitute opposition . . . . Because the enforcement of Title
VII depends on the willingness of employees to oppose unlawful employment
practices or policies, courts have interpreted section 704(a) of Title
VII as intending to provide �exceptionally broad protection to those
who oppose such practices'. . . ."
Whipple v. Department of Veterans Affairs, EEOC Request No. 05910784
(February 21, 1992) (citations omitted).
To establish a prima facie case of reprisal discrimination, complainant
must show that (1) he engaged in prior protected activity; (2) the
acting agency official was aware of the protected activity; (3) he was
subsequently disadvantaged by an adverse action; and, (4) there is a
causal link. The causal connection may be shown by evidence that the
adverse action followed the protected activity within such a period of
time and in such a manner that a reprisal motive is inferred. Simens
v. Department of Justice, EEOC Request No. 05950113 (March 28, 1996)
(citations omitted). "Generally, the Commission has held that nexus may
be established if events occurred within one year of each other." Patton
v. Department of the Navy, EEOC Request No. 05950124 (June 27, 1996).
In addition, the Commission has issued policy guidance evaluating
retaliation claims in the EEOC Compliance Manual, Volume I, Retaliation,
�8 ( May 20, 1998). There, it is pointed out that the retaliation
provisions prohibit any discrimination that is reasonably likely to
deter a complainant or others from engaging in protected activity.
Id. at 8-14 through 8-15. The retaliation
provisions do not restrict the actions that can be challenged to
those that affect the terms and conditions of employment. Id. at 8-15.
Accordingly, a violation will be found if an employer retaliates against
a worker for engaging in protected activity through threats, harassment in
or out of the workplace, or any other adverse treatment that is reasonably
likely to deter protected activity by that individual or other employees.
Id. at 8-15 through 8-16. The guidance goes on to suggest that the
degree of harm suffered by the individual goes to the issue of damages,
not liability. Id. at 8-14, citing Hashimoto v. Dalton, 118 F.3d 671,
676 (9th Cir. 1997).
To the extent complainant argues that he was retaliated against
through non-promotion, the application of performance standards, and
the �unacceptable� performance rating, we have already found that the
agency has articulated nondiscriminatory reasons for those actions, and
that complainant has failed to show pretext. With respect to the adverse
material in his personnel file (speech impediment) and the racial slurs
allegations, the record suggests that these matters were previously
addressed in the MSPB proceeding.<8> Indeed, the FAD found these
allegations were previously litigated before the MSPB, and complainant
presented no concrete evidence of such behavior by the agency after his
reinstatement in Chicago. Complainant's affidavit (Investigation Exhibit
6) and his February 1990 Grievance Report (Appeal Exhibit 3) further
confirm that the adverse material in his personnel file and racial slurs
allegations are based on actions prior to his reinstatement at the agency
and involved his then-supervisor at the Dallas, TX, office.
6. Harassment
Complainant has also alleged that he was subjected to harassment.
The harassment of an employee based on his/her race, color, sex,
national origin, age, disability, or religion is unlawful, if it is
sufficiently patterned or pervasive. McKinney v. Dole, 765 F.2d 1129,
1138-39 (D.C. Cir. 1985). To prevail on his harassment claims, however,
complainant must show that he was subjected to harassment because
of discriminatory factors with regard to an issue in his complaint.
In assessing allegations of harassment, the Commission examines factors
such as the frequency of the alleged discriminatory conduct, its severity,
whether it is physically threatening or humiliating and if it unreasonably
interferes with an employee's work performance. Harris v. Forklift
Systems, Inc., 510 U.S. 17 (1993). Consistent with the Commission's
policy and practice of determining whether a complainant's harassment
claims are sufficient to state a hostile or abusive work environment
claim, the Commission has repeatedly found that claims of a few isolated
incidents of alleged harassment usually are not sufficient to state a
harassment claim. See Phillips v. Department of Veterans Affairs, EEOC
Request No. 05960030 (July 12, 1996); Banks v. Health and Human Services,
EEOC Request No. 05940481 (February 16, 1995). In determining whether an
objectively hostile or abusive work environment existed, the trier of
fact should consider whether a reasonable person in the complainant's
circumstances would have found the alleged behavior to be hostile or
abusive.
To establish a prima facie case of hostile environment harassment,
complainant must show that: (1) he is a member of a statutorily protected
class; (2) he was subjected to harassment in the form of unwelcome verbal
or physical conduct involving the protected class; (3) the harassment
complained of was based on the statutorily protected class; and (4)
the harassment affected a term or condition of employment and/or had the
purpose or effect of unreasonably interfering with the work environment
and/or creating an intimidating, hostile, or offensive work environment.
Humphrey v. United States Postal Service, EEOC Appeal No. 01965238
(October 16, 1998); 29 C.F.R. � 1604.11.
To the extent complainant argues that the failure to promote, the
wrongful application of performance standards, and the performance rating
were harassment, we have already discussed these matters and found the
allegations to be without merit. To the extent complainant argues that
the agency put adverse material into his personnel file and engaged in
racial slurs, we have already discussed that these matters were addressed
in the MSPB proceeding, and complainant presented no concrete evidence
of such behavior by the agency after his reinstatement in Chicago.
CONCLUSION
Even to the extent the evidence presented in the MSPB termination
proceeding may have provided additional relevant background, it would
not have been dispositive, in view of the complainant's present failure
to meet his burden of persuasion involving the claims presently under
consideration by the Commission. Therefore, after a careful review of the
record, including complainant's contentions on appeal, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
January 9, 2001
Date
1The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2 On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
3 Since complainant has not raised any concern about his request for a
hearing, we do not believe it is before the Commission on appeal.
4 A mixed case complaint is a discrimination complaint, filed with
the agency, that relates to or stems from an action that may also be
appealed to the MSPB. It appears from the FAD that matters involving
allegations four (adverse material on speech impediment in his personnel
file-Rehabilitation Act) and five (racial slurs-Title VII) were addressed
in the MSPB proceeding. The MSPB's proceeding would thus appear to
involve a mixed case complaint, embracing protected activity.
5 Res judicata thus precludes claims which a plaintiff actually raised
or could have raised in a prior suit when (1) there is a final judgment
in a prior suit on the merits; (2) the decision in the prior suit is
rendered by a court of competent jurisdiction; (3) the parties in both
suits are identical; and (4) both suits involve the same cause of action.
See Citibank N.A. v. Data Lease Fin. Corp., 904 F.2d 1498, 1501 (11th
Cir. 1990).
6Under the doctrine of collateral estoppel, �once an issue is actually
and necessarily determined by a court of competent jurisdiction, that
determination is conclusive in subsequent suits based on a different
cause of action involving a party to the prior litigation.� Montana
v. United States, 440 U.S. 147, 153 (1979), citing Parklane Hosiery
Co., Inc. v. Shore, 439 U.S. 322, 326 n.5 (1979)); see EEOC Request
No. 05940948 (June 3, 1996).
7 Complainant does summarily state that one of his cases which was
going to be used against him in his performance rating, resulted in
a certificate of commendation to complainant from the United States
Attorney General. Assuming this to be true, it would not counter balance
the deficiencies in complainant's performance as outlined by the SAIC.
8 These allegations in the MSPB proceeding, however, would appear to
provide the necessary protected activity condition precedent to an
allegation of retaliation.