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."