01970584
05-20-1999
Joseph F. Lewis, Appellant, v. Janet Reno, Attorney General, Department of Justice, (Bureau of Prisons) Agency.
Joseph F. Lewis, )
Appellant, )
) Appeal No. 01970584
v. ) Agency No. P938264
)
Janet Reno, )
Attorney General, )
Department of Justice, )
(Bureau of Prisons) )
Agency. )
)
DECISION
Appellant filed a timely appeal with this Commission from a final
agency decision (FAD) concerning his complaint of unlawful employment
discrimination on the bases of race (Black) and reprisal (prior EEO
activity), in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq. Appellant alleges he was
discriminated against when: (1) he did not receive a promotion and
transfer as a result of insufficient �vouchering� by his superiors;
and (2) he was down-graded in his quarterly performance evaluation. The
appeal is accepted in accordance with EEOC Order No. 960.001. For the
reasons that follow, the agency's decision is AFFIRMED.
Appellant was employed as a Senior Officer Specialist at a Federal
Correctional Institute (FCI) in Bastrop, Texas. On April 20, 1993,
he filed a complaint alleging discrimination, as referenced above.
After investigating the complaint, the agency issued its FAD on September
24, 1996, finding no discrimination. It is from this FAD that appellant
now appeals.
With respect to appellant's first allegation, the record shows that
he sought promotion to a GS-9 Lieutenant position and transfer to
the FCI in Jessup, Georgia, in order to live with his ailing mother.
Appellant contacted his Warden (W1) and Associate Warden (W2) to request
that they assist him with this transfer. W1 contacted the Warden at
the Jessup FCI, and strongly endorsed appellant. Shortly thereafter,
a GS-9 Lieutenant position became available and appellant was told to
apply. Appellant's application was not timely, so he was not selected.
Review of the appellant's application reveals that in addition to Jessup,
he indicated his desire to be considered for GS-9 Lieutenant vacancies
in many FCI locations throughout the United States.
Based on this application, appellant was placed on the Best Qualified
List (BQL) for five vacancies, located in various places in the agency's
southeast region, including another vacancy in Jessup. Appellant was
not selected for any of these positions. According to the Selecting
Official, appellant was not selected because the Wardens of the selectees
endorsed them more strongly. The record shows that one of appellant's
supervisors (S1) received voucher calls on behalf of appellant, but that
W1 and W2 stated that they were not contacted, not even with respect
to the second Jessup vacancy. S1 stated that he gave appellant a very
positive recommendation each time he was contacted. In the meantime,
while unaware of this activity on appellant's application, W1 and
W2 testified that they were promoting appellant's transfer to Estill,
North Carolina, which was the one other FCI within commuting distance of
appellant's mother. However, before a vacancy became available there,
appellant resigned, effective March 3, 1993.
Appellant contends that as compared to Black officers, the applications
for White and Hispanic officers were more strongly vouchered by W1 and
W2, and that many Whites and Hispanics had received the promotions and
transfers they requested.<1> Appellant contends that his applications
were unsuccessful because, despite making the BQL, they were not strongly
vouchered by W1 or W2 because of his race.
With respect to appellant's second allegation, he asserts that after
he gave testimony on behalf of a fellow employee in her discrimination
complaint against the agency, his quarterly performance evaluation, dated
December 12, 1992, was down-graded to �fully successful� as compared
to the �outstanding� evaluations he had consistently received for the
past five years.<2> He claims that his evaluation was down-graded in
retaliation for his testimony, which was unfavorable to the agency.
The FAD concluded that appellant established prima facie cases of race
discrimination and reprisal, but that the appellant did not show that
the agency's articulated legitimate reason for its decision was, more
likely than not, a pretext for discrimination.
Appellant's complaint of discrimination constitutes a claim of disparate
treatment which is properly analyzed under the three tiered analytical
framework outlined in McDonnell Douglas v. Green, 411 U.S. 792 (1973);
Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to retaliation cases); and Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253-256 (1981).
Allegation 1
We concur with the FAD that the agency articulated a legitimate
nondiscriminatory reason by stating that appellant was not vouchered
for by W1 or W2 on the five vacancies for which he was not selected
because they were not contacted to do so. Instead, S1 was contacted,
and stated that he gave appellant a positive endorsement. Also, W1 and
W2 testified that they promoted appellant's transfer to both Jessup and
Estill, but that appellant's first application to Jessup was untimely,
and he resigned before the Estill vacancy became available.
We also find that the appellant failed to establish that these reasons
were a pretext for unlawful racial discrimination. The testimony of
W1, W2, and S1 is unrebutted, and there is no evidence showing that
W1 or W2 were aware of any of appellant's five active applications,
including the second Jessup application. We note that the second
Jessup application was activated several months after W1's initial
inquiry to the Jessup Warden on behalf of appellant, and that this may
be the reason W1 was not contacted when appellant made the BQL on the
second application. The supervisor who was contacted gave appellant a
positive recommendation, and W1 and W2 both indicated that they would
have vouchered appellant very strongly had they been contacted. We find
that this testimony is credible because the record shows that appellant
was highly regarded and consistently received excellent evaluations from
all of his supervisors. There is nothing in the record to suggest that he
would receive a poor endorsement from any of his superiors. Moreover,
the record shows that W1 and W2 actively promoted appellant's transfer
to both Jessup and Estill, and expressed a strong desire to help the
appellant secure a transfer. In fact, W1 even spoke to appellant's
mother personally to explain the situation and assured her that he
was working to find appellant a suitable transfer as soon as possible.
We note that appellant was on the BQL and under very serious consideration
for a GS-9 Lieutenant vacancy at Estill, and the record indicates that
had appellant not resigned, there was a very good chance that he would
have been offered this position.
In support of his contention that managers at Bastrop FCI historically
gave strong endorsements for the promotion and transfers of Whites and
Hispanics, appellant provided five names of White transferees. However,
there is no evidence to indicate that these transferees where selected
based on vouchering, or to what degree this may have played a role in
their selection. Moreover, there is no evidence describing the vouchering
received, or whether it was better than that provided for appellant.
Furthermore, as noted in the FAD, although the management officials
have control over the endorsements which they provide for applicants,
they do not have control over which applicant is ultimately selected.
We also note that almost without exception, testimony from appellant's
co-workers and others stationed at Bastrop failed to support his
contention that the management had an anti-Black bias, or that Whites
and Hispanics were promoted faster than Blacks.
Allegation 2
With respect to appellant's contention that he was down-graded in his
performance evaluation as retaliation for providing testimony in a
discrimination complaint against the agency, we find that the agency
articulated a legitimate nondiscriminatory reason for its action by
explaining that S3 was new to the job and had not observed appellant's
work for very long (less than 90 days). Also, S3 was noted to have
stricter standards than appellant's previous supervisors, and that he
down-graded the evaluation because appellant engaged in unauthorized use
of a phone several times, and that his work generally did not merit an
�outstanding� evaluation. We also find that these articulated reasons
were not a pretext for reprisal.
The record shows that S3 told appellant that his excessive and
unauthorized use of the phone would be reflected on his performance
evaluation, but that appellant continued to use the phone in this manner.
Moreover, S3 noted that appellant performed his job better in certain
areas, and that he was rated as �excellent� accordingly, but that in
other areas his performance was best assessed as �fully successful.� For
example, S3 indicated that appellant did an �excellent� job following
security procedures (Element 4), but that with controlling contraband
(Element 3), he did not perform as well, and was given a �fully
successful� rating. S3 testified that based on his direct observation
of appellant's performance, he did not earn an overall �outstanding�
evaluation. We find that S3's explanation is credible, because S3's
testimony shows that he personally observed appellant, and carefully
considered each element of appellant's performance evaluation. Also,
with respect to the performance appraisal itself, S3 provided examples of
appellant's performance to justify the rating, rather than, for example,
just down-grading him across the board. Furthermore, the record indicates
that appellant's co-workers received �down-graded� evaluations as well,
reflecting that S3's stricter standards were applied to everyone, not
just appellant. Additionally, the record is devoid of any indication
that S3 was aware of appellant's testimony, or that it was in any way
a factor in down-grading his performance evaluation.
Therefore, based on the above reasoning and analysis, with respect to
both allegations on appeal, we find that the appellant failed to present
evidence sufficient to show that more likely than not, the agency's
reasons for its actions were a pretext for the discrimination alleged
by the appellant.
Accordingly, after a careful review of the record, including arguments
and evidence not specifically addressed in this decision, we AFFIRM
the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
May 20, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1The FAD treats this contention as a separate claim of pattern and
practice discrimination. However, we find that this contention is
intended to support appellant's individual claim of disparate treatment
based on race. Accordingly, although we will carefully consider the
evidence that appellant presents in support of this contention with
respect to his individual claim, we find that the issue of pattern and
practice racial discrimination is not properly before us as a separate
claim, and it will not be considered herein.
2Although appellant does not raise this allegation in his formal
complaint, it is discussed with the EEO counselor, included in the
EEO investigation, and addressed in the FAD. Therefore, the matter is
properly before us on appeal, and will be included in this decision.