Michael Harris, Petitioner,v.John W. Carlin, Archivist, National Archives and Records Administration, Agency.

Equal Employment Opportunity CommissionFeb 16, 2001
03a10040 (E.E.O.C. Feb. 16, 2001)

03a10040

02-16-2001

Michael Harris, Petitioner, v. John W. Carlin, Archivist, National Archives and Records Administration, Agency.


Michael Harris v. National Archives and Records Administration

03A10040

February 16, 2001

.

Michael Harris,

Petitioner,

v.

John W. Carlin,

Archivist,

National Archives and Records Administration,

Agency.

Petition No. 03A10040

MSPB Docket No. CH-0432-99-0306-I-1

DECISION

INTRODUCTION

On December 26, 2000, Michael Harris (petitioner) timely filed a petition

with the Equal Employment Opportunity Commission (the Commission) for

review of the final order of the Merit Systems Protection Board (MSPB)

issued November 24, 2000, concerning his allegations of

discrimination based on race (African-American) and sex (male) in

violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq. The petition is governed by 29 C.F.R. �

1614.303 et seq. The MSPB found that the agency had not engaged in

discrimination as alleged by petitioner. For the reasons that follow,

the Commission concurs with the decision of the MSPB.

ISSUE PRESENTED

The issue presented is whether the MSPB's determination that petitioner

failed to prove that the agency discriminated him based on race and

sex when it demoted him from a grade four position to a grade three

position constitutes a correct interpretation of the applicable laws,

rules, regulations, and policy directives and is supported by the record

as a whole.

BACKGROUND

According to the record, petitioner was an Archives Technician

(Technician), GS-4, with the agency. On April 4, 1997, the agency issued

petitioner a Notice of Proposed Reduction-in-grade and Reassignment for

failure to consistently perform at an acceptable level. On May 8, 1997,

the deciding official sustained the Notice of Proposed Reduction-in-grade

and Reassignment and; effective May 11, 1997, petitioner was reduced

from a Technician, GS-4, position to an Archives Aid, GS-3, position

and assigned to a different section in the same office. Believing he

was a victim of discrimination, petitioner sought EEO counseling, and,

subsequently, filed a mixed case complaint<1> alleging that the agency

discriminated against him based on race (African-American) and sex (male).

As provided by 29 C.F.R. � 1614.302(d)(1)(i), petitioner subsequently

filed an appeal on the same matter with the MSPB prior to the agency

issuing a final decision.

Petitioner stated that a similarly situated white male and a (race

unknown) female employee (comparators) who also had production problems

were not reduced in grade but instead were reassigned to other offices in

the agency. He stated further that he did not know that his performance,

during the period at issue, was �on standard;<2>� that he was given both

GS-3 and GS-4 work although he was �on standard� for GS-3 work;<3> and

that reassignment to a different office would have been more appropriate

than a reduction-in-grade.

The agency stated that petitioner had four wage-in-grade denials in four

years due to poor performance appraisals, was placed on a Performance

Improvement Plan (PIP) after he received an �Unacceptable� performance

appraisal rating, received a �Fully Successful� rating while on the PIP

but almost immediately fell to an �Unacceptable� performance rating for

seven months.<4> Summarily, the agency stated that petitioner could

not consistently meet his required grade standard as clearly expressed

to him.

After an MSPB hearing on the matter, an Administrative Judge (AJ) issued

an initial decision finding that petitioner failed to establish a prima

facie case of discrimination based on race or sex when he did not show

that a similarly situated individual outside of his protected class was

treated differently. The AJ further found that, assuming that petitioner

did establish a prima facie case,

he failed to establish that the legitimate, nondiscriminatory reason

articulated by the agency was pretextual. The AJ affirmed the agency's

action. Petitioner subsequently filed a petition for review to the

Board, which was inconclusive<5> rendering the initial decision the

final decision of the MSPB. This petition to the Commission followed.

ANALYSIS AND FINDINGS

The Commission must determine whether the decision of the MSPB with

respect to the allegation of discrimination based on race and sex

constitutes a correct interpretation of any applicable law, rule,

regulation or policy directive and whether said decision is supported

by the evidence in the record as a whole. 29 C.F.R. � 1614.305(c).

When a petitioner relies on circumstantial evidence to prove an agency's

discriminatory intent or motive, there is a three step, burden-shifting

process. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

The initial burden is on the petitioner to establish a prima facie

case of discrimination. Id. at 802. The burden then shifts to the

agency to articulate some legitimate, nondiscriminatory reason for its

challenged action. Id. If the agency is successful, the petitioner

must then prove, by a preponderance of the evidence, that the legitimate,

nondiscriminatory reason articulated by the agency is merely pretext

for discrimination. McDonnell Douglas, 411 U.S. at 804.

Because the agency articulated a legitimate, nondiscriminatory reason

for its action ( i.e., petitioner failed to consistently meet his grade

standard), we may proceed directly to determining whether petitioner

satisfied his burden for showing pretext. Haas v. Department of Commerce,

EEOC Request No. 05970837 (July 7, 1999)(citing U.S. Postal Service

Board v. Aikens, 460 U.S. 711, 713-14 (1983)). Petitioner may do this

in one of two ways, either directly, by showing that a discriminatory

reason more likely motivated the agency, or indirectly, by showing that

the agency's proffered explanation is unworthy of credence. Texas Dep't

of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). Essentially,

the fact finder must be persuaded by the petitioner that the agency's

articulated reason was false and that its real reason was discriminatory.

St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515 (1993).

Petitioner argued that the agency reassigned comparators but that it

did not do the same for him. Thus, he stated, the agency's reason was

pretextual.

Based on the record, petitioner did not show that a similarly situated

employee outside of his race or sex was treated more favorably than he

or that an inference of discrimination based on race or sex existed<6>.

Regarding the former, petitioner and his male comparator had different

performance histories<7> and the record is void of evidence regarding a

female comparator. In addition, he did not show that the legitimate,

nondiscriminatory reason articulated by the agency was pretextual.

Petitioner failed to prove discrimination based on race or sex.

CONCLUSION

Based upon a thorough review of the record and for the foregoing reasons,

it is the decision of the Commission to CONCUR with the final decision

of the MSPB finding no discrimination. The Commission finds that the

Board's decision constitutes a correct interpretation of the laws, rules,

regulations, and policies governing this matter and is supported by the

evidence in the record as a whole.

STATEMENT OF PETITIONER'S RIGHTS

PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)

This decision of the Commission is final, and there is no further right of

administrative appeal from the Commission's decision. You have the right

to file a civil action in an appropriate United States District Court,

based on the decision of the Merit Systems Protection Board, within

thirty (30) calendar days of 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.

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

February 16, 2001

__________________

Date

1A mixed case complaint is a complaint of

employment discrimination filed with a Federal agency based on race,

color, religion, sex, national origin, age or disability related to

or stemming from an action that can be appealed to the Merit Systems

Protection Board (MSPB). 29 C.F.R. � 1614.302.

2Based on the record, the productivity performance of an employee is �on

standard� when the employee's average time to complete tasks is compared

to an established standard time to complete the same tasks. Conversely,

the productivity performance of an employee is �off standard� if no such

comparison is made.

3Petitioner stated that GS-3 work is simpler but requires greater

productivity, which is difficult to achieve when GS-4 work is mixed in

with it.

4The agency issued petitioner a letter, dated August 7, 1996, ending

the PIP and indicating that petitioner could be subject to reassignment,

change to a lower grade or removal if he failed to maintain a �Minimally

Satisfactory� performance level until April 24, 1997.

5The two Board members could not agree on the disposition of the petition

for review so they issued separate opinions. Their opinions primarily

deal with whether the agency's action should have been a reduction

in force as opposed to a demotion. The opinions do not address

discrimination issues.

6See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 311-12

(1996).

7Over a four year period, the agency consistently observed petitioner

meet his performance standards to attain a short-term goal, e.g., a PIP,

and then soon thereafter perform poorly.