0120070219
08-29-2008
Melvin C. Porter, Complainant, v. Henrietta H. Fore, Acting Administrator, Agency for International Development, Agency.
Melvin C. Porter,
Complainant,
v.
Henrietta H. Fore,
Acting Administrator,
Agency for International Development,
Agency.
Appeal No. 0120070219
Agency No. EOP-04-02
DECISION
Complainant filed an appeal from the agency's September 14, 2006 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.
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
an Administrative Officer, GS-14, at the agency's facility in Washington,
D.C. On December 19, 2003, complainant filed an EEO complaint alleging
that he was discriminated against on the bases of race (African-American),
sex (male), and in reprisal for prior protected EEO activity when:
1. Beginning July 1, 2003, complainant's supervisor solicited
information from his colleagues to use against him, and sent complainant
electronic mail messages that included statements about complainant's
failure to perform his duties and responsibilities. These actions were
designed to support an unfavorable evaluation of complainant;
2. On July 8, 2003, complainant's supervisor failed to follow the
Agency Employee Evaluation Guidance for mid-year reviews when she denied
complainant sufficient time to prepare for his mid-year review, denied
him the opportunity to provide 360 degree sources prior to the review, and
denied him the opportunity to have a third party present at the review.
3. On July 9, 2003, complainant's supervisor assessed his performance
as "borderline unacceptable;" and
4. On October 21, 2003, complainant's supervisor denied him the
opportunity to incorporate changes to his performance measures for the
2003 rating cycle. The unchanged performance measures undermined his
ability to demonstrate performance at the effective and above levels.
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). In accordance with
complainant's request, the agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b) concluding that complainant failed to prove that
he was subjected to discrimination as alleged.
In its decision, the agency dismissed claims (1) through (3) pursuant
to 29 C.F.R. � 1614.107(a)(3) on the grounds that complainant had filed
a civil action encompassing the same claims.
The agency found that with respect to claim (4), complainant did not
establish a prima facie case of either sex or race discrimination because
complainant had not identified any similarly situated employees, not
in complainant's protected classes, whose performance measures had been
changed upon their request shortly before the end of the rating period.
The agency found that complainant did establish a prima facie case of
reprisal discrimination. The agency found that complainant's supervisor
was aware of complainant's previous EEO activity and that activity shortly
preceded the incident described in claim (4). However, the agency found
that complainant's supervisor considered that performance measures must be
in place 120 days before the end of the rating cycle to be in compliance
with the agency's guidelines. The agency found that complainant had
not shown the agency's articulated reasons for its actions to be false
or unworthy of belief. Rather, the agency observed that complainant
admitted he did not know of any other employees who had been permitted
to change performance measures so close to the end of the rating period.
The agency found that complainant did not successfully show that the
agency's reasons for its actions were pretext. Accordingly, the agency
found that no discrimination occurred as alleged.
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 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). Complainant
must initially establish a prima facie case by demonstrating that he or
she 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). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. 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).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
In the instant case, we find the agency properly dismissed claims (1),
(2) and (3) pursuant to 29 C.F.R. � 1614.107(a)(3). We observe that
Civil Action No. 04-1440 (RBW), filed in the United States District
Court for the District of Columbia alleges discrimination in violation
of Title VII and encompasses the "borderline acceptable" performance
evaluation complainant received in July 2003.
With respect to claim (4), we concur with the agency that none of
the evidence presented shows that the agency's reasons for denying
complainant's request to change his performance measures were pretext.
We find that complainant did not identify any other employees who, in
similar circumstances were treated better than he was. Nor do we find
evidence that agency policies permit a supervisor to modify performance
standards as complainant requested in October 2003 for the 2003 rating
period. We find that complainant did not show that more likely than
not reprisal motivated the agency's decision as alleged.
Based on a careful review of the record, we AFFIRM the agency's final
decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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 (Z0408)
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
August 29, 2008
__________________
Date
2
0120070219
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036