Kernon D. Brye, Complainant,v.John Ashcroft, Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity CommissionOct 6, 2003
01A24573 (E.E.O.C. Oct. 6, 2003)

01A24573

10-06-2003

Kernon D. Brye, Complainant, v. John Ashcroft, Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.


Kernon D. Brye v. Department of Justice

01A24573

October 6, 2003

.

Kernon D. Brye,

Complainant,

v.

John Ashcroft,

Attorney General,

Department of Justice,

(Federal Bureau of Prisons),

Agency.

Appeal No. 01A24573

Agency No. P-20-0006

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning 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. The appeal is accepted pursuant

to 29 C.F.R. � 1614.405.

The record reveals that during the relevant time, complainant was

employed as a Recreation Specialist at the agency's Federal Prison Camp

in Pensacola, Florida. On August 20, 1999, complainant initiated EEO

counseling and subsequently filed a formal complaint on October 4, 1999.

Complainant amended his complaint on March 13, 2000. In his complaint,

complainant alleged that he was discriminated against on the bases of

race and color (African-American) when:

(1) On February 29, 2000, the agency issued him a letter of proposed

demotion from his position of Recreation Specialist, GS-9, to the

position of Correctional Officer, GS-7;

From August 3 through 5,1999, the agency suspended complainant;

On April 20, 1999, the agency suspended complainant;

On March 18, 1999, complainant's supervisor unfairly proposed to suspend

him for five days;

Complainant was harassed after he presented his supervisor with a

summary of eight recreation programs on November 25, 1998,

In September 1998, the Recreation Department had a superior Program

Review rating, but complainant did not receive an outstanding performance

rating;

The agency failed to provide complainant with a personal computer

although other staff members were provided a computer;

On March 16, 1999, complainant's supervisor became hostile and

argumentative when he tried to speak to him;

In May 1999, the agency cancelled complainant's scheduled trip to an

Affirmative Action Recruiting trip to Baton Rouge, Louisiana;

On December 1, 1999, complainant's supervisor denied complainant's

within-grade increase.

In a letter dated September 12, 2000, the agency dismissed claims 3 -

10 as matters that were not timely brought to the attention of an

EEO Counselor. The agency accepted claims 1 and 2 for investigation.

At the conclusion of the investigation, complainant was informed of

his right to request a hearing before an EEOC Administrative Judge, or

alternatively, to receive a final decision by the agency. Complainant

initially requested a hearing before an Administrative Judge, but

subsequently withdrew this request, opting for a final agency decision.

In its final decision, the agency concluded that complainant failed

to prove discrimination for both claims. The agency determined that

for both claims, complainant failed to establish a prima facie case of

discrimination and failed to establish that the agency's legitimate,

non-discriminatory reasons for its actions as pretext for discrimination.

As a preliminary matter, we note that we review the decision on an appeal

from a final agency decision de novo. 29 C.F.R. 1614.405(a). Accordingly,

we have carefully reviewed the entire record before us in our attempt to

discern whether a preponderance of the evidence warrants a modification

of the agency's remedial ruling. See 29 C.F.R. 1614.405(a).

Claims 3 -10

The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in

pertinent part, that an agency shall dismiss a complaint which raises a

matter that has not been brought to the attention of an EEO Counselor,

and is not like or related to a matter on which the complainant has

received counseling. A later claim or complaint is "like or related"

to the original complaint if the later claim or complaint adds to

or clarifies the original complaint and could have reasonably been

expected to grow out of the original complaint during the investigation.

See Scher v. United States Postal Service, EEOC Request No. 05940702

(May 30, 1995); Calhoun v. United States Postal Service, EEOC Request

No. 05891068 (March 8, 1990).

The record reveals that complainant brought claim 2 to the timely

attention of an EEO Counselor and later amended his complaint to include

claim 1. Both claims involve discrete acts. Complainant seeks to have

claims 3-10 accepted as part of an ongoing hostile work environment claim.

However, complainant did not bring a timely claim of harassment to

the attention of an EEO Counselor. Moreover, most of claims 3-10 are

themselves discrete acts. Accordingly, we discern no legal basis for

excusing complainant's obligation to raise claims 3-10 in a timely manner.

Therefore, we find that the agency properly dismissed claims 3-10.

Claims 1 and 2

In an investigative affidavit, the supervisor stated that complainant

failed to prepare a booklet for a Martin Luther King, Jr. Day holiday

celebration in a timely manner, although he was told to have the booklet

completed a week before the event. The supervisor stated that complainant

also claimed that he had given him guidelines for eight recreation

programs on November 25, 1998, when in fact a review of complainant's

computer hard drive confirmed that none of the program reports had

been created or submitted on the date complainant claimed. The record

reveals that in a memorandum dated June 5, 1999, complainant's supervisor

proposed to suspend him for seven days for failure to follow instructions

and providing a false statement. The prison warden subsequently found

the charges against complainant fully supported by the evidence, but

reduced the suspension to three days. In an affidavit, complainant

contended that his suspension evidenced disparate treatment because a

white recreation specialist lost a key to a vehicle but was not suspended.

The record further reveals that on December, 1999, complainant was

given notice that he was performing at an unacceptable level in

two critical elements and was issued a performance improvement plan

(PIP).<1> Complainant was given sixty calendar days to demonstrate

performance at an acceptable level. In a letter dated February 29, 2000,

complainant's supervisor recommended that complainant be demoted for

unacceptable performance of assigned duties. The memorandum stated that

in December 16, 1999, complainant submitted an unacceptable basketball

league schedule that was not in the format as the approved template

and had errors regarding team playing times. The letter also stated

that on January 5, 2000, complainant allowed an inmate suspended from

a previous game to play basketball, although league rules mandate that

any player ejected from a game serve a minimum of one game suspension.

The letter noted that complainant had been suspended for a total of

four days in 1999. On April 13, 2000, the warden found the charge of

unacceptable work performance fully supported by the evidence and demoted

complainant to Correction Officer, GS-7, Step 10, effective May 7, 2000.

In his affidavit, complainant's supervisor stated that complainant

lacked organizational skills and often submitted documents that were

"error-ridden." The warden stated that complainant had received several

years of unacceptable or minimally acceptable performance appraisals.

In his affidavit, complainant asserted that his basketball schedules were

repeatedly rejected, while the schedules by a white recreation specialist

were accepted. Complainant further stated that he was confused about

which template to use because his supervisor used different templates.

Complainant noted that a white friend of the supervisor replaced him

when he was demoted.

To prevail in a disparate treatment claim, 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 first

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). In order to establish a prima facie case of

discrimination based on race, complainant must show that he is a member

of a protected group and that he was subjected to an adverse employment

action. Packard v. Department of Health & Human Serv., EEOC Appeal

Nos. 01985494, 01985495 (Mar. 22, 2001). He must also show either that he

was treated less favorably than other similarly situated employees outside

of his protected group, or must present other evidence which supports an

inference that the agency was motivated by unlawful discrimination. See

O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312 (1996);

EEOC Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp.,

EEOC Notice No. 915.002, at n.4 (Sept. 18, 1996).

After complainant establishes a prima facie case, the burden then shifts

to the agency to articulate some legitimate, nondiscriminatory reason

for its challenged action. McDonnell Douglas, 411 U.S. at 802. If the

agency is successful, complainant must then prove, by a preponderance of

the evidence, that the legitimate, nondiscriminatory reason articulated

by the agency is merely pretext for discrimination. Id. at 804.

In claim 1, complainant contends that the agency subjected him to

discrimination on the basis of race when it demoted him. Complainant

established that he is an individual of a protected class and was

subjected to the adverse action of demotion. However, complainant failed

to present any evidence from which an inference of discrimination could

be established, such as a similarly situated non-black employee who was

treated differently under similar circumstances. Consequently, we find

that complainant failed to establish a prima facie case of discrimination

for claim 1.

Nonetheless, for the purpose of analysis, we further note that

the agency responded that complainant's demotion was justified

because complainant failed to perform satisfactorily in his position.

Complainant's supervisor cited complainant's submission of a basketball

league schedule in an incorrect format and complainant's violation of

agency rules regarding player suspensions. In response, complainant

merely responded that he was confused by the different templates, but

did not state that he sought any guidance with this matter beforehand.

We further note that complainant did not directly respond to the agency's

contention that he violated agency rules regarding player suspensions.

Consequently, we find that complainant failed to present sufficient

evidence to demonstrate that any of the reasons proferred by the agency

for his demotion were pretext for discriminatory animus.

Regarding claim 2, we find that complainant failed to establish a prima

facie case of discrimination. In an attempt to establish a prima facie

case, complainant compares himself to a white employee who lost a key

but did not receive a suspension. However, we find that unintentionally

losing a key is a very different type of offense from complainant's

offense of deliberately making a false representation about critical

work matters to his supervisor. Therefore, we find that complainant

failed to present a comparative who was similarly situated as he and

treated differently, nor any other evidence from which an inference

of discrimination could be derived. Nonetheless, even if complainant

established a prima facie case of discrimination, we find that the agency

provided legitimate, nondiscriminatory reasons for its actions that

were not persuasively rebutted by complainant as pretext for unlawful

discrimination. Complainant maintains that his supervisor once stated

that he received the program information as complainant maintained, but

complainant's supervisor emphatically stated that complainant failed to

submit the program information to him at the time he claimed. Moreover,

we find the supervisor's explanation credible because complainant

stated in his affidavit that he "can not [sic] explain why the programs

1. Racquetball, 2. Handball, 3. Soccer (indoor), 4. Soccer (outdoor),

5. Volleyball, 6. Basketball (all 5 sections) are listed in the hard drive

of my computer as being created after November 25, 1998." We further

note that complainant failed to counter his supervisor's statement that

the suspension was also issued because complainant failed to prepare

the holiday booklet in a timely manner. Consequently, we find that

complainant failed to prove that the agency's proferred reason for his

suspension was pretext for unlawful discrimination.

Therefore, after a careful review of the record, including complainant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, we affirm the FAD.

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

_________________

Date

1The two unacceptable elements were "Plans, Monitors, and Evaluates"

and "Performs Professional Duties."