01A15045
11-04-2002
Michael A. Grinage, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Michael A. Grinage v. Department of the Treasury (Internal Revenue
Service)
01A15045
November 4, 2002
.
Michael A. Grinage,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
(Internal Revenue Service),
Agency.
Appeal No. 01A15045
Agency No. TD 99-1003
Hearing No. 100-99-8048
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) 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. For the following reasons,
the Commission AFFIRMS the agency's final order.
The record reveals that during the relevant period, complainant was
employed as a GS-13, EEO Specialist at the agency's Internal Revenue
Service facility in Maryland. The record reflects that on June 22,
1997, complainant was given a 120-day detail to the position of Program
Analyst in the Service-wide Diversity/EEO Office. Prior to the end
of the detail, complainant's supervisor (S1: African-American female)
promoted him to a GS-14, Supervisory Program Analyst position.
On September 28, 1997, complainant assumed the acting Section Chief of
Special Programs position. On January 18, 1998, complainant returned
to his EEO Specialist position. In May 1998, S1 met with complainant
to discuss his individual development plan (IDP). During the meeting,
they discussed complainant's goals, his desire for high visibility
assignments and opportunities, and the underrepresentation of Black
males in headquarters operations. The record reflects that S1 informed
complainant that she would try to get him rotational assignments in other
divisions within headquarters and assign him a Black male mentor who
could assist him in his professional development. Accordingly, S1 sent
emails to other division directors expressing complainant's interest in
high visibility assignments. S1 also requested that complainant provide
her a copy of his updated resume.
In June 1998, a new chief (S2: African-American female) was selected for
the Complaints Processing Analysis and Liaison Support Section and, in
doing so, became complainant's first level supervisor. On June 24, 1998,
complainant asked S2 for his performance appraisal for the rating period
ending March 1998. Complainant told S2 that he had applied for several
positions and needed his appraisal to complete his application packages.
S2 asked complainant to give her a point of contact in personnel regarding
his application package and then he asked him to provide her with a
self-assessment to assist her in completing the performance appraisal.
Complainant provided S2 with a self-assessment covering the period
September 1997 thru January 1998.
The record reflects that S2 contacted S1 to obtain input covering
the period during which complainant was on detail outside the office.
S1 testified that she told S2 that she had to consistently follow-up
with complainant on major assignments such as preparing a reasonable
accommodation training plan and that complainant failed to complete work
on certain high visibility projects such as leading a team to identify
issues that were contributing to the underrepresentation of minority
group members.
The record also reflects that feedback was requested from another manager
(S3: African-American female) who had supervised complainant while he was
on detail. S3 testified that complainant's detail had not gone well.
Specifically, S3 stated that complainant failed to keep confidential
information properly stored and that he was unable to manage his work
in such a way that major program activities were accomplished. S3 also
testified that complainant's assignments were late and needed corrections.
S2 issued complainant's performance appraisal in July 1998. S2 rated
complainant �Exceeds Fully Successful� in workload management.
Complainant had been rated �Outstanding� in this element in the
prior rating period. The narrative for this element stated that
complainant could benefit from additional experience and/or development
in handling multiple priorities while meeting deadlines and expectations.
S2 testified that she could not rate complainant �Outstanding� in that
element because two independent managers had given her negative feedback
regarding his ability to timely complete assignments. S2 also testified
that she did not lower the appraisal of any other employee because no
other employee received negative feedback from their previous managers.
The record establishes that S2 offered complainant several developmental
assignments which complainant refused to accept. Complainant indicated
that he wanted to leave the EEO field.
Complainant filed a formal EEO complaint on October 2, 1998, alleging
that the agency had discriminated against him on the bases of race
(African-American), sex (male), and reprisal for prior EEO activity when:
(1) he was not selected for the position of staff assistant;
management failed to timely submit his performance appraisal for the
rating period ending March 1998; and,
on July 22, 1998, he was issued a performance appraisal which was lower
than he felt he deserved for the rating period ending March 1998.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of discrimination with regard to claims 1 and 2. In regard to
claim 1, while complainant contented that the selection for the staff
assistant position was noncompetitive, the AJ found that the selectee
was competitively selected from a valid promotional certificate for which
complainant failed to apply. In regard to claim 2, the AJ found that S2
failed to timely submit performance appraisals for all the employees that
she supervised. The AJ also noted that complainant failed to present any
other evidence to raise an inference of race and/or sex discrimination
with respect to claims 1 and 2.
In regard to claim 3, the AJ concluded that complainant established a
prima facie case of race and sex discrimination because he received
a lower performance appraisal while others not within his protected
groups did not have their performance appraisals lowered. The AJ also
concluded that complainant established a prima facie case of reprisal
discrimination because S1, the concurring official on his appraisal,
was aware of complainant's prior EEO activity at the time the rating
was issued.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that S2 lowered
complainant's appraisal because two independent managers had given her
negative feedback regarding his ability to timely complete assignments.
The AJ noted that S1 and S3 provided credible corroborating testimony.
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discriminatory animus and/or retaliatory motive.
The agency's final order implemented the AJ's decision. On appeal,
complainant contends, among other things, that the AJ erred when she
gave more evidentiary weight to the testimony of agency management than
to complainant.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor 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). First, complainant must establish a prima facie
case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination; i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination. Id. at 256.
After a careful review of the record, the Commission finds that the
AJ's findings of fact are supported by substantial evidence in the
record and that the AJ's decision properly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
The Commission agrees with the AJ's conclusion that complainant failed to
establish a prima facie case of race and/or sex discrimination in regard
to claims 1 and 2. In particular, substantial evidence of record supports
the AJ's finding that the staff assistant position was filled from a valid
promotional certificate. In addition, the record evidence establishes
that no employee supervised by S2 received a timely performance appraisal.
Thus, complainant was not treated any less favorably than his co-workers.
With respect to claim 3, the Commission agrees with the AJ's conclusion
that complainant established a prima facie case of race, sex, and/or
reprisal discrimination. We also agree that the agency articulated
legitimate, nondiscriminatory reasons for its actions. Specifically,
the record evidence shows that complainant's rating was lowered based on
the submissions of former supervisors that provided negative commentary
regarding his performance. In contrast, none of complainant's co-workers
had their ratings lowered because none of their former supervisors
provided negative commentary regarding their work performance.
We note that complainant failed to present evidence that any of the
agency's actions were in retaliation for complainant's prior EEO activity
or were motivated by discriminatory animus toward complainant's race
and/or sex. We discern no basis to disturb the AJ's decision. 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 agency's final
order.
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
November 4, 2002
__________________
Date