0120091106
01-31-2011
Eugene D. Johnson, Complainant, v. Paul F. Prouty, Acting Administrator, General Services Administration, Agency.
Eugene D. Johnson,
Complainant,
v.
Paul F. Prouty,
Acting Administrator,
General Services Administration,
Agency.
Appeal No. 0120091106
Agency No. 08-NCR-WP-EDJ-1
DECISION
Complainant filed an appeal from the Agency's December 31, 2008 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. For the following reasons, the
Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Building Services Manager at the Agency's Metropolitan Service Center in
Arlington, Virginia. Complainant filed an EEO complaint alleging that the
Agency discriminated against him on the bases of race (African-American),
age (76), and reprisal for prior protected EEO activity under Title VII
of the Civil Rights Act of 1964, and the Age Discrimination in Employment
Act of 1967 when:
1. On July 19, 2007, Complainant was not selected for the position
of Supervisory Building Manager, GS-1176-13, under Vacancy Announcement
Number WPD130MP07;
2. From October 2007 to November 2007, and March 2008 to April 2008,
Complainant was subjected to harassment based on reprisal;
3. On December 5, 2007, Management issued Complainant a Level 4,
Performance Summary Rating for FY 2007;
4. Management denied Complainant's request to be relocated to a
new duty station on May 5, 2008; and
5. Management did not select Complainant for the position of
Supervisory Building Manager, GS-1176M-I3, under Vacancy Announcement
Number WPG236MP07.1
Previously, by letter dated November 2, 2007, the Agency dismissed
an additional claim Complainant sought to have amended to the instant
complaint. Complainant identified his additional claim as follows.
Management has continued to treat me differently than other associates
at Metropolitan Service. Because of race and age; regardless to my
above recorded satisfactory work performance. Please amend my case
to include past years 2001/2002 through 2007 discriminatory measures
by GSA. (Involuntary transfer to GSA by FDS), job harassment by GSA
officials.
Record on Appeal, (ROA), at 74. The Agency dismissed this additional
claim pursuant to 29 C.F.R. � 1614.107(a)(1). The Agency found that
Complainant raised the same claims in prior complaints he had filed.2
On appeal, we find no basis to disturb the Agency's dismissal and that
Complainant has not challenged the Agency's dismissal of this claim.
We therefore AFFIRM the Agency's dismissal pursuant to 29 C.F.R.
� 1614.107(a)(1).
Complainant's remaining claims were accepted for investigation. At the
conclusion of the investigation, the Agency provided Complainant with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). When Complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b).
In its decision, the Agency found that, with respect to claim (1)
(nonselection), that Complainant failed to establish a prima facie case
of discrimination on the bases of age or race because the two candidates
selected were in Complainant's own protected groups. However, the
Agency found that Complainant did establish a prima facie case of
reprisal discrimination. Agency Final Decision (Ag Decision) at 7.
The Agency found that Complainant was not recommended for selection after
an interview, in which Complainant's interview answers were noted by three
panel members. The panel members recommended two candidates (selectee (1)
and selectee (2)) both of whom interviewed better than Complainant did.
Id. In turn, the Agency observed that the selecting official relied
on the recommendations of the interviewing panel. While the selecting
official was aware of Complainant's prior EEO activity, the Agency found
no reason to second-guess the recommendations of the interview panel,
and no reason to believe that the selection process was a pretext for
discrimination. Id. at 8.
With respect to claim (2), (overall claim of harassment), the Agency
found that Complainant described events that did not impact a term,
privilege or condition of employment. Moreover, the Agency found that
Complainant did not describe a sufficient nexus between his prior EEO
activity and the incidents he termed harassment. Specifically, the Agency
noted that Complainant objected to a co-worker, (C1) reporting directly
to Complainant's supervisor, S1. Complainant also complained that the
Director of the Metropolitan Service Center remarked to Complainant
that he had filed a lot of complaints and she did not know what to do
with Complainant. Id. at 9. Neither incident, the Agency found, rose
to the level of harassment. The Agency concluded that Complainant did
not prove that he was subjected to discriminatory harassment as stated
in claim (2).
Turning to claim (3), (performance rating) the Agency found that S1 was
responsible for rating Complainant's performance for fiscal year 2007
(FY 2007). However, the Agency noted that S1 was unaware of Complainant's
prior EEO activity and accordingly, Complainant failed to establish a
prima facie case of discrimination based on reprisal. For the sake
of argument, the Agency found that even if Complainant had shown a
prima facie case of discrimination, that S1 provided legitimate reasons
for rating Complainant at level 4, and not, as Complainant believed he
deserved, at level 5. Id. at 10, 11. Specifically, S1 stated that none
of the building managers that he supervised received a level 5 rating.
S1 found that met his job expectations, but that Complainant did not
consistently exceed performance expectations. Id. The Agency found
that Complainant did not present evidence that S1's reasons were unworthy
of belief. The Agency therefore found that Complainant did not show
that the Agency's reasons for its actions were pretext.
With respect to claim (4), (duty station transfer request), the Agency
found that S2, Complainant's second level supervisor, was aware of his
prior EEO activity, but that Complainant failed to establish any causal
link between his prior EEO activity and the denial of his request to
transfer to a different duty station and away from S1's supervision.
The Agency observed that S3 (S2's supervisor) received Complainant's
request for a transfer by electronic mail message in June 2008. However,
S3 believed that the Agency was best served by allowing Complainant to
focus on his workload before considering Complainant for a transfer.
The Agency found no facts to establish that S3 denied Complainant's
request because of Complainant's prior EEO activity. Accordingly, the
Agency found no discrimination with respect to claim (4). Id. at 11.
Regarding claim (5) (nonselection), the Agency found the record was
not clear whether the selecting official (SO2) for the position of
Supervisory Building Manager, GS-1176M-13, advertised under Vacancy
Announcement Number WPG236MP07, was aware of Complainant's prior EEO
activity. Nevertheless, the Agency found that Complainant presented no
evidence that the interview panel scoring the candidates was influenced
by Complainant's prior EEO activity, and further found that the time
between Complainant's 2007 EEO activity and the selection in May 2008
was too great to infer a discriminatory motive to the Agency. Id.
The decision concluded that Complainant failed to prove that the Agency
subjected him to discrimination as alleged.
On appeal, Complainant states that he has been subjected to ongoing
discrimination as a result of his whistleblowing activity.
ANALYSIS AND FINDINGS
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). See Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
� VI.A. (November 9, 1999) (explaining that the de novo standard of review
"requires that the Commission examine the record without regard to the
factual and legal determinations of the previous decision maker," and
that EEOC "review the documents, statements, and testimony of record,
including any timely and relevant submissions of the parties, and
. . . issue its decision based on the Commission's own assessment of
the record and its interpretation of the law").
Regarding complainant's claim of reprisal, the Commission has stated
that adverse actions need not qualify as "ultimate employment actions"
or materially affect the terms and conditions of employment to constitute
retaliation. Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410
(Nov. 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20,
1998)). Instead, the statutory retaliation clauses prohibit any adverse
treatment that is based upon a retaliatory motive and is reasonably
likely to deter the charging party or others from engaging in protected
activity. Id.
In the instant case, we find the record supports the Agency's final
decision. Specifically, we find the Agency properly found with respect
to claim (1), that the selecting official states that he relied on the
recommendations made by the panel of agency officials who conducted the
interviews of Complainant and the other candidates. Affidavit of Deputy
Director, Metropolitan Service Center, July 8, 2008 at 2. Both selected
candidates were African American and the selecting official did not know
how old either candidate was at the time of the selection. We find that
Complainant has not shown that more likely than not that the Deputy
Director was motivated by Complainant's race, age or by reprisal for
Complainant's prior EEO activity. Id.
We concur with the Agency that the incidents described in Complainant's
complaint as harassment based on reprisal, even if they occurred as
Complainant describes, are not sufficiently severe or pervasive to
state a claim of harassment. We find that the isolated remarks of
the Director, Metropolitan Service Center; an occasion in which S1 and
Complainant exchanged heated words, and the unexplained disappearance of
computer memory storage devices do not rise to the level of harassment.
We find the Agency properly found that Complainant did not prove reprisal
harassment occurred as alleged in his complaint. (Claim 2).
We further find that the Agency articulated legitimate, nondiscriminatory
reasons for issuing Complainant's performance appraisal with a level
(4) rating, which Complainant did not show were false. Affidavit of
Supervisory Buildings Manager (S1), undated, Record on Appeal (ROA)
at 138, Report of Investigation, Exhibit F2, page 7 of 12.
Regarding claim (4), we note that Complainant has not, as the Agency
noted, presented a prima facie case of reprisal discrimination in that
significant time elapsed between Complainant's prior EEO activity and the
time during which Complainant's request for a transfer was denied by the
Deputy Director of the Metropolitan Service Center. We do not discern
from the evidence the required connection between Complainant's protected
activity and the denial of his request to transfer to another location.
We find that Complainant has not shown that more likely than not the
Agency was motivated by retaliation.
Similarly, with respect to claim (5), we find the preponderant evidence
shows that the three panel members did not recommend Complainant for
selection to the multiple vacancies for Supervisory Building Manager
(GS-1176M-13) after his interview. We note that one panel member stated
that Complainant did not respond directly to the questions asked of all
candidates and that his interview performance was poor. Affidavit of
Customer Service Manager, Metropolitan Service Center, September 17, 2008,
Report of Investigation (ROI) at 176; Exhibit F8, page 3. Accordingly,
we concur with the Agency's analysis that Complainant has not shown the
reasons given by the Agency for failing to select him were a pretext
for reprisal discrimination. Ag Decision at 12.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
we AFFIRM the Agency's final decision, finding no discrimination.
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 tends 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
January 31, 2011
__________________
Date
1 Claim (1) is based on race, age, and reprisal. Claims (2) through
(5) were amended to Complainant's initial complaint and are based on
reprisal.
2The Agency found this summary claim included incidents encompassed
by claims Complainant raised in prior complaints including Agency case
numbers 2007-NCR-WP-EDJ-0008, 03-NCR-WP-EDJ-3, and 03-NCR-WP-EDJ-21.
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2
01-2009-1106
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120091106