0120103053
01-14-2011
Richard G. Southerton, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.
Richard G. Southerton,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.
Appeal No. 0120103053
Agency No. FBI-2008-000611
DECISION
On July 7, 2010, Complainant filed a timely appeal from the Agency's June
8, 2010, Final Agency Decision (FAD) concerning his equal employment
opportunity (EEO) complaint alleging employment discrimination in
violation of the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal
pursuant to 29 C.F.R. � 1614.405(a). For the reasons that follow,
the Commission AFFIRMS the Agency's FAD.
ISSUE PRESENTED
The issue presented in this appeal is whether Complainant established
that the Agency discriminated against him when he received a successful
rating on his annual Performance Appraisal Report.
BACKGROUND
On December 6, 2007, Complainant filed an EEO complaint alleging
that the Agency discriminated against him on the basis of age (50)
when: on September 30, 2007, he received a successful rating on his
annual Performance Appraisal Report (PAR). Following an investigation,
Complainant requested a FAD. The Agency issued its FAD on June 8, 2010,
finding that it did not discriminate against Complainant.2
At the time of the events giving rise to this complaint, Complainant
worked as a Special Agent (SA) at the Agency's Scranton Resident Agency
(RA), a sub-division of the Philadelphia Field Office White Collar
Corruption Program, in Scranton, Pennsylvania. Complainant began his
employment with the Agency in 1986, and worked at various facilities,
until he moved to Scranton in 2002. There, Complainant served as the
Primary Relief Supervisor for the former Supervisory Senior Resident Agent
(SSRA) (SF); when SF left in January 2005, Complainant acted as the SSRA
in Scranton for five months, until the arrival of his current supervisor
(S1) (43).
The Agency's PAR dated September 30, 2007 (2007), identified eight
Critical Elements (CEs), that could be rated as: (1) unacceptable, (2)
minimally successful, (3) successful, (4) excellent, and (5) outstanding;
the overall rating was an average of the ratings on the eight CEs.3
Complainant scored as follows:
CE
Rating - Points
1. Investigating, Decision Making, and Analyzing Ex
4
2. Organizing, Planning, and Coordinating
Suc 3
3. Relating with Others and Providing Professional Service Suc
3
4. Acquiring, Applying, and Sharing Job Knowledge Suc
3
5. Maintaining High Professional Standards Suc
3
6. Communicating Orally and in Writing Suc
3
7. Intelligence
MinS 2
8. Achieving Results
Suc 3
Overall Summary Rating - Successful
In the PAR, S1 stated that Complainant demonstrated successful performance
during the rating period, and, thus, he gave an overall rating of
successful. For each CE, S1 provided a brief statement justifying
the rating. For CE-1, for example, S1 praised Complainant's ability
to plan an investigation and maintain focus on it, citing a successful
Organized Crime investigation. For CE-7, S1 stated that Complainant
solicited the cooperation of a privileged source, but he did not draft
or produce an Intelligence Information Report (IIR). For the remaining
CEs, S1 stated that Complainant performed each in a successful manner.
The record shows that Agency managers in Philadelphia believed that the
Scranton RA needed better management and brought in S1 to improve the
RA and its operations. In his affidavit, S1 expressed the difficulty
he had in supervising and working with Complainant.4 S1 stated that
Complainant resisted, disagreed with, and challenged S1's directions,
disrupted mandatory RA meetings and, after counseling, did not attend
said meetings, refused to cooperate with other staff, and disparaged S1
to others. S1 also noted that Complainant did not give full attention to
his work during the rating period, in that, he was engaged in an appeal
to the Merit Systems Protection Board (MSPB) contesting an Agency action
against him.5 In some documents, he filed with the MSPB, Complainant
disclosed confidential information and sources; S1 counseled him orally
and in writing. S1 acknowledged that he discussed Complainant's behavior
with the Manager in Philadelphia but, because of cost, the Agency could
not move him. Based on Complainant's complaints to senior management,
the Agency conducted an investigation at the RA. The investigation
concluded that friction in the RA resulted from a personality conflict
and S1's changes in the RA's operations.
In regard to Complainant's allegation of age discrimination, S1
explained that he rated nine SAs. Two SAs, including one the same age
as Complainant, received ratings of Outstanding; two, including one
older than Complainant, received ratings of Excellent; and the remaining
five SAs, including Complainant, received successful ratings. The FAD
found that the record did not support Complainant's contentions of age
discrimination.
CONTENTIONS ON APPEAL
Neither party submitted comments on appeal. 6
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 Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
� VI.A. (November 9, 1999).
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). He
must generally 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). If Complainant is successful,
the burden of moving forward returns to the Agency to articulate a
legitimate, nondiscriminatory reason for its actions. To ultimately
prevail, Complainant must prove, by a preponderance of the evidence,
that the Agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000);
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't
of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
Assuming that Complainant established a prima facie case of
age discrimination, we find that the Agency has met its burden and
articulated a legitimate, nondiscriminatory reason for Complainant's
rating. The Agency, through S1, stated that Complainant's performance
rating was appropriate for the work performed during the rating period
and that the rating was a fair evaluation of his work. S1 stated
that Complainant's general behavior affected the quality of his work
and interactions with other SAs and himself (S1). Also, his MSPB case
detracted him from his assignments, and S1 considered that Complainant
did not give full attention to his work during the rating period
The burden now returns to Complainant to demonstrate by a preponderance of
the evidence that the Agency's reasons for its actions were pretext; that
is, that its articulated explanation was not its true reason, but that,
more likely than not, the Agency's actions were influenced by legally
impermissible criteria, that is, bias based on age. Complainant has not
presented evidence to demonstrate pretext, nor did he respond at any
time to the reasons articulated by the Agency. S1, we note, pointed out
that one RA, older than Complainant, received a rating of excellent and
another, the same age as Complainant, received a rating of outstanding.
We find, therefore, that Complainant failed to carry his burden and that
the Agency did not discriminate against him based on his age.
CONCLUSION
After a review of the record in its entirety and consideration of
all statements submitted on appeal, including those not specifically
addressed, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM the Agency's final decision, because the
preponderance of the evidence of record does not establish that
discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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
with the Court 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
___1/14/11_______________
Date
1 The Agency renumbered this complaint; previously, this complaint was
designated as No. F-08-3053.
2 Complainant did not review and or sign his affidavit.
3 The record contains Complainant's PAR from the previous year, showing
a rating of excellent; however, S1 stated that he initially rated him
successful, but changed it to excellent upon Complainant's request for
reconsideration.
4 We note that Complainant had applied for the SSRA position but was
not selected, in favor of S1.
5 Complainant had declined two positions, one of which he had applied for,
and the Agency removed him from the Executive Development and Selection
Program pursuant to Agency policies. He challenged this action before
the MSPB.
6 The Agency dismissed Complainant's allegation that S1 retaliated against
him for providing information to the Agency's Office of Professional
Responsibility, concluding that reporting such information was not prior
EEO activity. Also, because Complainant failed to provide clarification
of his hostile working environment claim, the Agency dismissed this claim.
Finally, the Agency dismissed Complainant's contention that S1 placed
him in unethical and unsafe circumstances, finding that such allegations
were whistleblower claims and not EEO matters. The Commission finds that
the Agency properly dismissed these allegations for the reasons stated.
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0120103053
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120103053