0120121775
08-10-2012
Daryl D. Green, Complainant, v. Stephen Chu, Secretary, Department of Energy, Agency.
Daryl D. Green,
Complainant,
v.
Stephen Chu,
Secretary,
Department of Energy,
Agency.
Appeal No. 0120121775
Agency No. 11-0029-0R
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's February 15, 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 General Engineer, GS-801-13, at the Agency's Performance Assurance Division, Oak Ridge National Laboratory, Environmental Management in Oak Ridge, Tennessee.
On January 19, 2011, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency discriminated against him on the bases of race (African-American), color (black), age (over 40), and in reprisal for prior protected activity when:
(1) on October 26, 2010, he received a numerical performance rating of 77.5 and adjective rating of "Meets Expectations;" and
(2) on November 9, 2010, the Acting Deputy Assistant Manager used a briefing on a project to raise questions regarding his involvement in the EEO process regarding his performance appraisal.
After the investigation, 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 or a final decision within thirty days of receipt of the correspondence. Complainant did not respond.
On February 15, 2012, the Agency issued the instant final decision, finding no discrimination. The Agency found that Complainant did not establish a prima facie case of age discrimination. However, the Agency found that Complainant established a prima facie case of race, color, and reprisal discrimination. The Agency nevertheless found that Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext.
Regarding claim (1), Complainant's first line supervisor (S1) stated that during the relevant period, Complainant was the Program Manager for the Liquid and Gaseous Waste facilities and was responsible for a new project for process waste facility upgrades. S1 stated that Complainant also had an assignment relating to an evaluation board for the IDIQ Hot Cell Project and was the BVBG IDIQ project manager. S1 stated that she was the rating period for the subject performance period, and gave Complainant a "Meets Expectations" rating. Specifically, S1 stated "our rating system is complicated, as you cannot rate point by point. You give up one point, half a point, or no point for each element, and that is weighted and added up. [Complainant] ultimately received a weighted score of 77.5." Furthermore, S1 stated that at that time she rated fourteen employees, including Complainant. S1 stated that out of the fourteen employees, five employees received "Outstanding" ratings because they "were found to exceed expectations on a sufficient number of elements to receive the necessary points for those ratings."
With respect to Complainant's allegation that he deserved an "Outstanding" rating, S1 stated that Complainant did the work that he needed to do within the "Meets Expectation" criteria. S1 further stated "I did not see that Complainant had gone above and beyond the expectations generally. There were two areas where I rated him as exceeding expectations - Integrated Safety Management and on his Special Assignments. I rated him as exceeding expectations in Special Assignments based upon his work on the Hot Cell Project."
The Portfolio Federal Project Director (D1) stated that Complainant's performance rating "was around the 78 level, which is a good and appropriate rating." S1 "sat down and talked to me and was attempting to fairly assess [Complainant's] performance. [S1] puts a lot of effort into her evaluations and tries to give both positive and negative feedback. I was impressed with her intent to try to do the best she could on each evaluation."
Regarding Complainant's assertion that he deserved an Outstanding rating, D1 stated that Complainant volunteered to take on more work, but the project manager's job is to balance the workload. D1 stated that the rating Complainant received "was not so much based on how much work he did; it was based on how well he did the work based upon the rating criteria. It is not a matter of just taking on more work; it is how well you do the work. The "Meets Expectations" rating ranges from 50 to 79 and then it goes up at the 80 level. In going through [S1's] evaluation, I agreed with it and saw that she factored in my evaluation. There seems to be a feeling that 50 to 79 is some kind of substandard evaluation, when that actually shows he was on the high end of meeting expectations."
The Acting Deputy Assistant Manager (M1) stated that he was the reviewing official concerning Complainant's FY 2010 rating. M1 stated that while S1 did her evaluation independently, "there was nothing that raised a flag for me in [S1's] evaluation, especially considering [Complainant] was receiving the same evaluation he received the year before."
Regarding claim (2), M1 stated that November 1, 2010, he sent an email to the supervisors and Project Managers, including Complainant, asking that each Project Manager prepare and schedule a briefing before their packages went to Headquarters. M1 stated that he also asked the Project Managers to "prepare a briefing and [I] laid out exactly what I wanted them to go through in their briefing. I wanted to make sure that we had a good package put together prior to them going to Headquarters. The briefing was held on November 9, 2010. I asked the same questions of all the Project Managers during the meeting. [Complainant] was not able to answer what I think most people would consider some basic questions. I did not belabor his lack of knowledge during the meeting. Instead, I chose the next day (November 10, 2010) to let him know that we needed to address some concerns, and he needed to know the details of his package."
M1 further stated that on November 10, 2010, Complainant had a meeting scheduled to discuss his performance rating with the Assistant Manager (AM). M1 stated, however, due to a conflict, AM was unable to meet with Complainant. M1 stated that when he found out that Complainant's meeting with AM was cancelled, he asked Complainant if he would like to discuss the matter with him but "he informed me that he did not want to discuss his appraisal rating with me. I made it clear that was fine if he did not want to discuss that."
M1 stated that he then asked Complainant to come into his office to discuss the briefing for his project, referenced above. Specifically, M1 stated "I stressed the importance of having an in-depth knowledge and understanding of the project he was sending to [Headquarters] for approval. The Complainant was the one who started discussing his appraisal, and I told him that I did not want to discuss his appraisal; I just wanted to discuss the project package he would be sending to Headquarters. I emphasized this discussion had nothing to do with his 2010 appraisal since we were in FY 2011. At this point, the Complainant informed me he was probably going to file an EEO complaint; this was the first indication I received that he may be considering going that route. Prior to that, I was only aware that he was unhappy with his FY 2010 performance rating. I considered our discussion to be more counseling and coaching. I was just trying to advise and council him on what he needed to know and what he would need to address when he sent the project package to Headquarters."
S1 stated that during the November 9, 2010, the four project managers were asked to provide presentations and were asked questions about their presentations by all of the management officials involved. S1 stated that Complainant was responsible for one of the four projects. S1 stated that management "wanted to make sure they were prepared when Headquarters came down to learn about the projects, because the funding on the projects hinged partly on how well we knew what we were doing on the projects. The questioning [Complainant] received was comparable to the questions the other project managers received. The questions we were talking each project manager were very similar."
Further, S1 stated that on November 10, 2010, the meeting management was supposed to have Complainant was put in [AM's] schedule without his knowledge. S1 stated that at that time the M1 was [AM's] deputy "so he came down to see if he wanted to meet with him instead. [Complainant] expressed that he did not want to have the meeting with [M1], he wanted to wait until [AM] was available. I was not present for any discussion Complainant had with [M1] in his office afterwards. I have not seen anything that would lead me to believe that [M1] was trying to dissuade Complainant from filing an EEO complaint."
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency erred finding no discrimination. Specifically, Complainant states "because the Agency applied the wrong analytical framework throughout its entire evaluation of the evidence, its entire findings and conclusions should be voided and the EEO investigative report and other evidence now provided to the EEOC should be re-analyzed, anew, using the 'motivating factor' analytical framework."
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-party 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).
In the instant case, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions, as addressed above. We further determine that Complainant has provided no persuasive arguments indicating any improprieties in the Agency's findings. Therefore, 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 discrimination 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
August 10, 2012
__________________
Date
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0120121775
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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