0120073431
11-16-2007
Emmett Fowler, Sr., Complainant, v. Dirk Kempthorne, Secretary, Department of the Interior, Agency.
Emmett Fowler, Sr.,
Complainant,
v.
Dirk Kempthorne,
Secretary,
Department of the Interior,
Agency.
Appeal No. 0120073431
Agency No. BIA05070
DECISION
On July 26, 2007, complainant filed an appeal from the agency's June 28,
2007, final decision concerning his equal employment opportunity (EEO)
complaint alleging 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 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.
At the time of events giving rise to this complaint, complainant worked
as a Facility Manager at the agency's Bureau of Indian Affairs Office of
Indian Education Programs in Shiprock, New Mexico. Complainant contacted
an EEO Counselor on May 10, 2005. The counselor advised complainant of his
right to file a formal complaint on August 18, 2005. On August 25, 2005,
complainant filed an EEO complaint alleging that he was discriminated
against on the basis of his sex when:
1. He was notified by letter dated March 14, 2005 that his contract as
Facility Manager, CE-4-21, would not be renewed for the 2005-2006 school
year; and
2. From 2004 to 2005, he was repeatedly detailed, without justification,
and told he was performing duties unsatisfactorily.
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). In accordance with
complainant's request, the agency issued a final decision (FAD) pursuant
to 29 C.F.R. � 1614.110(b) concluding that complainant failed to prove
that he was subjected to discrimination as alleged.
In its FAD, the agency found the complainant did not suffer a personal
harm under the terms, conditions or privileges of his employment since
he fulfilled his one-year contract without termination. Renewal of his
contract was not a term, condition, or privilege of his contract which he
was denied. The agency also found no evidence to prove that complainant
suffered any harm regarding terms or conditions of his employment
because of his detail duties. Complainant suffered no loss of wages,
leave, or benefits, and the agency maintained that dissatisfaction with
work was not an indication of discrimination. The agency also noted the
lack of evidence regarding similarly situated employees, determining the
complainant did not meet his burden of proof. Further, the agency found
that it articulated a non-discriminatory reason for its actions towards
complainant and that complainant failed to prove pretext. The agency
found that complainant was not discriminated against based on his sex.
On appeal, complainant argues that his past excellent job performance was
not considered in light of the accusations made by the Agency and requests
that the agency decision be reversed. Agency argues that complainant
did not satisfy the burden of proof nor provide new evidence on appeal
and requests that the agency decision be affirmed.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de
novo review by the Commission. 29 C.F.R. � 1614.405(a); EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999).
The record reveals the following facts: According to complainant's
affidavit testimony, he began working at Shiprock, New Mexico in June
of 1997 as a Facilities Specialist. He was promoted to Agency Manager
in 2001. Complainant's performance ratings between 1998 and 2004 were
excellent. According to the Acting Education Line Officer's (ELO-1)
affidavit testimony, between June and October of 2004, she observed
the program operations at Shiprock and determined that action should
be taken to correct the problems found therein. The ELO-1 learned of
numerous staff verbal complaints about complainant's supervision and
processes and procedures he established. She also learned that since
1997 there had been an on-going dispute between complainant and the
Agency Facility Management Secretary. Both parties had filed complants
against one another, and in 2003 complainant assigned her to detail
duties away from his facilities. The ELO-1 also learned of possible
retaliatory actions by complainant against co-workers when complainant
told the ELO-1, in July of 2004, that he considered getting co-workers
fired after they verbally attacked him. The ELO-1 also learned of an
inappropriate personal relationship between complainant and a Facility
Management Foreman. Complainant showed this foreman special treatment by
way of not disciplining him for falsifying work documents and paying him
for unnecessary over-time worked, both occurrences at unspecified dates
and times. On June 10, 2004, after a dispute between complainant and a
co-worker, the ELO-1 called a meeting to facilitate a resolution. At the
meeting, the complainant acted unprofessionally by raising his voice and
threatening his staff and the ELO-1. Subsequently, the ELO-1 conferred
with the Human Resources Office in Albuquerque, N.M., the Acting Deputy
Director, and the Head of Facilities Management in Albuquerque and decided
to put complainant on detail duties to remove him from the facilities
so that an administrative review could be conducted. On September 16,
2004, the ELO-1 informed complainant that he would be removed from his
current duties and place in an unclassified detail between September 20,
2004 and October 20, 2004. On September 21, 2004, the ELO-1 requested
an on-site visit at the Agency Office. On October 25, 2004, she extended
complainant's detail until November 20, 2004.
On October 26, 2004, the ELO-1's tenure ended and she was replaced. On
November 15, 2004, the new Acting ELO (ELO-2) extended complainant's
detail until January 19, 2005. He stated in his affidavit testimony
that he was advised by his superiors to do so. Complainant contacted
the ELO-2 on November 19, 2004 to inquire why he had been placed on
detail duties. On December 3, 2004, complainant was informed that he
had broken the chain of command and was given no further information.
On January 21, 2005, the ELO-2 assigned complainant to new detail duties
from January 24, 2004 until February 22, 2005. On February 23, 2005,
the Agency School Board President informed the ELO-2 via memorandum
that complainant's contract would not be renewed for the following year.
On February 25, 2005, the ELO-2 extended complainant's detail until June
30, 2005. On March 14, 2005, he informed complainant that his contract
would not be renewed for the following year because of unsatisfactory
work. On March 15, 2005, complainant requested an informal hearing,
which was held on April 8, 2005. At the informal hearing, complainant
represented himself and submitted information, which the ELO-2 reviewed.
On April 13, 2005, the ELO-2 informed complainant that the decision not to
renew his contract had been sustained for various reasons. These reasons
included basic maintenance not being accomplished, the work order system
not being implemented, work time and materials not being accounted for
on work order tickets, workers leaving duty stations without approved
authorization, financial discrepancies, and insufficient record-keeping
and record-updating of maintenance 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).
Assuming that complainant established a prima facie case of sex
discrimination, we find that the agency articulated legitimate,
non-discriminatory reasons for its actions in not renewing complainant's
contract for the following year (Claim 1) and placing complainant on
detail duties (Claim 2).
Regarding Claim 1, the agency decided not to renew complainant's
contract because of poor job performance and provided him with a list
of required duties which he failed to carry out. Complainant did
not complete basic maintenance work, implement the work order system,
account for time and materials on work orders, sufficiently supervise his
staff, or keep accurate records about past or pending maintenance work.
The agency also noted some major discrepancies in the facilities budget,
unspent and unaccounted for moneys as well as unauthorized transfers of
funds between facility buildings, for which complainant was responsible.
This amounted to a poor job performance rating, leading to his contract
not being renewed.
We find complainant failed to proffer sufficient evidence to establish
that the agency's articulated legitimate non-discriminatory reasons were
a pretext for discrimination. In order to establish that the legitimate
non-discriminatory reasons were a pretext, complainant argued that
he did attempt to accomplish the basic maintenance work. He proffered
requisition forms for financing the work needed. However, the most recent
date of such a form is May of 2004, which is before the ELO-1 arrived
and began making assessments of the facilities. Complainant stated that
accomplishing some tasks took time but he offered no evidence that he
made follow-up inquiries about the status of the funds needed. He also
proffered inquiry letters to independent contractors about completing
some of the tasks. Again the most recent was dated April of 2004 and no
follow-up inquiries were offered. This evidence is insufficient to show
that the agency's legitimate non-discriminatory reasons were a pretext.
Complainant also argued that he delegated the responsibility of
implementing the work order system to someone else who never completed it.
However, the agency was not concerned with the delegation, but with
the completion of the task, which complainant admits never occurred.
This does not establish pretext. He also failed to address the
issue of time and materials being unaccounted for on work orders.
Complainant also argued that he did sufficiently supervise his staff
and explained the process; however, he failed to offer evidence of the
mandatory records for this activity. Complainant went on to argue that
he had been trying to use budget money to improve facilities. He did not;
however, facially address the issue of unspent and unaccounted for money.
Complainant finally argued that he did have accurate records of past and
pending maintenance work but could not produce such records, stating that
the current Facility Manager have them. Complainant had the opportunity
at the hearing to request, via discovery, the records that he maintained
were in possession of the facility manager, but he did not. Complainant
does not proffer sufficient evidence to prove by a preponderance that
the agency's reasons for its actions were pretextual.
Regarding Claim 2, we also find that the agency articulated a legitimate,
non-discriminatory reason for assigning complainant to detail duties.
Upon arriving at the agency, the ELO-1 observed practices and procedures
that seemed inconsistent with the way the facilities at the agency
should be run. The ELO-1 enumerated that she had been advised to assign
complainant detail duties to ensure that he was off-site so that the
facilities could be inspected. The ELO-2 stated the same reasoning for
extending complainant's detail duties.
We find also that complainant failed to proffer sufficient evidence to
establish that the agency's articulated legitimate non-discriminatory
reasons were a pretext for discrimination. In order to establish that the
legitimate non-discriminatory reasons were a pretext, complainant argues
that the ELO-1 did not give a reason for the detail duties until months
later and because no reason was given for his detail duties in a timely
manner, it must have been discriminatory. Based on the preponderance
of the evidence, we find that the delay in informing complainant why he
was being detailed, by itself, is not sufficient to establish pretext.
We find it reasonable that the agency would not inform complainant why he
was being detailed because management wanted him out of the facilities
in order to conduct a review. Thus we find that complainant failed to
prove by a preponderance of the evidence that the articulated legitimate
non-discriminatory reasons were a pretext.
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we affirm the agency
decision.
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 (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
___11-16-07_______________
Date
2
0120073431
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
7
0120073431