0120093188
01-29-2010
Donovan R. Lawrence, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Donovan R. Lawrence,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120093188
Agency No. 086809802106
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated July 1, 2009, dismissing 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. In its final decision, the agency determined that complainant failed
to demonstrate that he had been subjected to unlawful discrimination.
The appeal is deemed timely and is accepted pursuant to 29 C.F.R �
1614.405(a). For the following reasons, the Commission affirms the
agency's final decision.
The record reveals that complainant filed a formal complaint on October
20, 2008, alleging that he was subjected to discrimination on the bases
of race (African-American) and reprisal for prior protected EEO when:
1. on May 14, 2008, his commanding officer disapproved the hiring of
a GS-07 Assistant Contracting Officer Representative (ACOR) to provide
assistance to complainant, and on June 11, 2008, questioned the Personnel
Management Board's (PMB's) recommendation that the ACOR be hired for
complainant;
2. on July 17, 2008, the commanding officer made inquiries about a COR
inspection; and
3. on December 4, 2008, complainant was denied a Level 5 performance
rating.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested
an immediate final agency decision. The agency issued a final decision
pursuant to 29 C.F.R. � 1614.110(b) concluding that complainant failed
to prove that he was subjected to discrimination as alleged.
Regarding claim 1, the record indicates that since accepting his civilian
position with the agency in December 2004, complainant had been requesting
assistance to perform his responsibilities.1 According to complainant,
the agency assured him that he would receive appropriate assistance.
However, complainant alleges that he was only provided with marginal,
temporary or ineffective assistance that included a GS-05 clerical
assistant, a service contract assistant, and a Navy corpsman. Complainant
indicated that over the four-year period between 2004 and 2008, his
area of responsibility grew from approximately four million dollars to
over 13 million dollars, and he believed he was performing the work of
three employees without proper assistance. Agency management responded
that it made numerous attempts to respond to complainant's requests
for assistance. In 2007, following an Inspector General (IG) report
that confirmed the need for an ACOR to assist complainant with his job
duties, management commenced the required personnel steps to hire an
ACOR for complainant. Complainant came under the authority of a new
commanding officer in June 2007 and the record indicates that she was
unaware of the findings of the IG report determining the need for an
ACOR to assist complainant. Therefore, in May 2008, she disapproved
the written justification presented to her to recruit for the position
as inadequately supported. In June 2008, after becoming aware of the
IG report and receiving further justification, the recruitment for the
position was approved to hire the ACOR for complainant.
In claim 2, complainant alleged reprisal for initiating the EEO process
concerning claim 1 when, in July 2008, the commanding officer had the
command evaluator ask complainant about the annual command contract
review. He also alleged that he was unjustly criticized by the commanding
officer for not conducting a contract continuance related meeting even
though he did not do so because he had no assistance. In describing
these events, however, complainant did not indicate how he suffered
any harm with respect to the terms, and conditions of his employment
as a result of the agency's alleged conduct. There is, for example,
no indication that complainant was disciplined, or otherwise suffered
any adverse employment as a result of the actions described in claim 2.
In claim 3, complainant argued that he should have received a level 5
performance rating based on his management of 13.75 million dollars in
complex contracts. Complainant alleged that his rating did not reflect
his level of responsibility or the quality of his performance. The record
indicates that complainant's immediate supervisor agreed that complainant
deserved a Level 5 rating and submitted justification in support thereof.
The recommendation of complainant's immediate supervisor was put before
a panel of agency officials (Pay Pool), for approval. However, the
agency's Executive Officer, identified as the Pay Pool Manager, stated
that individuals in complainant's position are recommended generally to
receive a rating of Level 3. Management witnesses further indicated
that a Level 4 rating was outstanding and that no other employee had
received a Level 5 based on complainant's level of responsibility.
Ultimately complainant was awarded a Level 4 on his performance rating
based in large part on his personal knowledge of complainant's work.
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 in this case, however, since 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); 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).
In the instant matter, we conclude that complainant failed to establish
a prima facie case of discrimination with regard to all three claims.
Specifically, complainant failed to identify similarly situated
individuals outside of complainant's protected classes who were treated
more favorably in similar circumstances or provide other evidence that
would establish an inference of discrimination. Moreover, as already
noted, complainant failed to show how he was harmed with regard to
the alleged actions in claim 2. Moreover, even if he had been able to
establish an initial inference of discrimination or unlawful retaliation,
it was successfully rebutted through agency management's articulation
of legitimate, nondiscriminatory reasons for its actions. Finally,
complainant has not demonstrated, by as preponderance of the evidence,
that the agency's conduct was based on any discriminatory animus toward
his protected classes or that the agency's articulated reasons for its
conduct were pretext to mask unlawful discrimination as alleged.
Accordingly, the agency's decision finding no discrimination is AFFIRMED
for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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 29, 2010
__________________
Date
1 To the extent that complainant may be alleging discrimination between
2004 and 2008, we find this matter untimely raised in accordance with
EEOC Regulation 29 C.F.R. � 1614.107(a)(2).
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0120093188
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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