0120091310
05-28-2009
Horace McCann, Complainant, v. Hilda L. Solis, Secretary, Department of Labor, Agency.
Horace McCann,
Complainant,
v.
Hilda L. Solis,
Secretary,
Department of Labor,
Agency.
Appeal No. 0120091310
Agency No. CRC0804068
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's December 19, 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. Complainant alleged
that the agency discriminated against him on the basis of reprisal for
prior protected EEO activity under Title VII when: management did not
grant him a performance award in an amount equal to that given to other
GS-12 Hygienists.
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). 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). The decision concluded that complainant failed to prove
that he was subjected to discrimination as alleged.
In its final decision, the agency found no discrimination. The agency
determined that management had cumulatively recited legitimate,
nondiscriminatory reasons for its actions. The Area Director (AD) stated
that cash awards/bonuses are based on the "current rating of record" and
the employee's rate of basic pay. The bonus determinations are made at
the Regional Office and not by him or complainant's immediate supervisor.
The AD explained that the standards have three critical elements and
the performance award has a direct correlation with the number of
elements met or exceeded (the more elements exceeded, the higher the
performance award (for the same basic pay). Complainant's award was
strictly based on his performance rating and basic pay. The AD commented
that, in light of complainant's performance, he received a very generous
performance rating and cash award. The AD explained that there are four
industrial hygienists in the area office that are similarly situated
to complainant. Two of them received higher performance ratings, and
two, including complainant, received Effective ratings. Thus, the two
with the higher ratings received greater cash awards than complainant.
The AD indicated that one of them performed more than twice the number of
inspections than complainant and the other conducted 25% more inspections,
including two significant cases, which are cases where penalties in
excess of $100,000 are issued. Both also identified a greater number
of violations per inspection. These two industrial hygienists received
awards of $3000 and upwards while complainant and the fourth industrial
hygienist received awards of $850 each.
Management also explained that the NCFLL agreement (agency's bargaining
agreement) notes that an employee receiving an Effective rating is not
required to receive a performance award but instead, "should be considered
for and may receive a performance award." The agreement also states
that the suggested percent of the employee's rate of basic pay is up
to 4%. There is no requirement that an employee receiving an Effective
rating must receive 4% of his basic rate of pay but only that 4% is the
maximum percentage of basic rate of pay. Complainant's award ($850 - 1%
of this basic rate) clearly falls within the parameters established by
the NCFLL Agreement. Furthermore, management asserted that complainant
was not singled out based on his prior EEO activity since a similarly
situated Industrial Hygienist with apparently no prior EEO activity
received the same rating and performance award.
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 EEOC Management
Directive 110, 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").
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).
On appeal, complainant questions, inter alia, the AD's testimony that
one of the higher-rated employees performed more than twice the number
of inspections than he and the other conducted 25% more inspections,
including two significant cases, which are cases where penalties in excess
of $100,000 are issued. Complainant asserts that this evidence is not
credible because it is subjective. However, as the agency asserted, the
AD's testimony regarding his evaluation of the employees is competent
evidence. Thus, the AD and other managers had objective standards by
which to measure employees' performance of investigations and cases,
and the AD provided unchallenged testimony that, when considered under
those standards, the performance of the two employees who received higher
ratings and bonuses was superior to complainant's. Further, beyond his
bare assertions, complainant has not produced evidence to show that the
agency's explanations are a pretext for discrimination.
After a review of the record in its entirety, including consideration
of all statements submitted 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 (M1208)
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 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 (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 (Z1008)
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
May 28, 2009
__________________
Date
2
0120091310
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120091310