01a51121
03-11-2005
Thomas M. Jimerson, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.
Thomas M. Jimerson v. Department of Agriculture
01A51121
March 11, 2005
.
Thomas M. Jimerson,
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A51121
Agency No. 020597
Hearing No. 370-A3-X2243
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.
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405.
Complainant, a Zone Ecologist, at the agency's Six Rivers and Mendocino
National Forests in Eureka, California, filed a formal EEO complaint
on May 29, 2002, alleging that the agency discriminated against him on
the bases of race (Caucasian), sex (male), age (D.O.B. 12/6/43), and in
reprisal for prior protected activity when:
(1) on December 31, 2001, he was issued a proposed 14-day suspension
letter and served a 7-day suspension from March 24-30, 2002; and
(2) management rescinded his government check writing authority,
retrieved his government credit card, and removed some of his program
area responsibilities.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). The agency filed a motion for summary judgment concerning
reprisal as a basis. In response to the agency's motion, complainant
requested that his complaint be amended to include the following claim<1>:
(3) since September 9, 2002, he was subjected to reprisal in the terms
and conditions of his employment (including unfounded criticism of and
interference with his work, imposition of discipline, and issuance of
substandard performance appraisals).
During a pre-hearing conference, the AJ granted the agency's motion
for summary judgment concerning reprisal as a basis, and accepted
complainant's request to have his new reprisal claim added to his
complaint. Following a hearing held on May 5, 6, and 17, 2004, the AJ
issued a decision finding no discrimination.
In her decision, the AJ concluded that complainant failed to prove
discrimination concerning claims (1) - (3). Specifically, the AJ found
that the agency took an adverse action against complainant when management
issued him a 14-day suspension, reduced to a 7-day suspension (claim
(1)); and rescinded his procurement authority (check writing authority
and credit card authority) (claim (2)). The AJ found that the agency
articulated legitimate, nondiscriminatory reasons for its actions.
Further, the AJ concluded that complainant failed to provide that
his suspension and loss of procurement authority was motivated by
discriminatory animus.
The AJ noted that as a Zone Ecologist, complainant had a $2,500.00
purchasing authority. The AJ further noted that complainant's suspension
and loss procurement authority arose due to an error concerning the
employment status of an individual with whom complainant contracted
to perform work on a project jointly sponsored by the agency and the
Department of the Interior. The Forest Supervisor stated that in April
2001, he became aware of the improper procurement action involving
the contractor employee. The Forest Supervisor further stated that he
was concerned that complainant authorized the performance of contract
work without an approved contract, and that complainant submitted the
contractor's Time and Attendance sheets which he found to be false
because the contractor was not an employee during the relevant period.
The Forest Supervisor stated that he received a voice message from the
Operations group leader saying that complainant left a �threatening,
intimidating and degrading voice message� with an Acquisition employee
concerning the improper procurement action. The Forest Supervisor stated
that he proposed to suspend complainant for 14 days because of concern
about the �deception and game playing� involved in complainant's ignoring
the direction provided by two purchasing agents. The Forest Supervisor
indicated that complainant did not care what the purchasing agents said,
and that complainant �was going to do his project and that was that.�
The AJ acknowledged that the Forest Supervisor was incorrect in his
understanding of the agency rules relating to complainant's contracting
authority. However, the AJ noted that notwithstanding the Forest
Supervisor's erroneous belief, his determination to suspend complainant
and to recommend rescission of his contracting authority was based on
far more that these erroneous facts; rather the assessment of the Forest
Supervisor was that complainant had handled the matter poorly �from the
beginning to the end.�
The AJ found the testimony of complainant's former Supervisor to be
credible. Specifically, the former Supervisor testified that he had a
conversation with the Forest Supervisor about the problems involving the
contractor employee, and that the Forest Supervisor �was uncomfortable
that it had gotten to the place where there were so many errors in the
process and going back and forth, trying to get something ratified that
shouldn't have ever really happened.� The Supervisor stated that it was
his impression that the Forest Supervisor �felt [Complainant] knowingly
did what he did.�
Regarding claim (3), the AJ noted that complainant's claims included
discipline, unfounded criticism of and interference with his work,
and substandard performance appraisal. The AJ further concluded that
she found no evidence in the record showing that the Forest Supervisor
took any action against complainant because of his race, sex, age or
in reprisal for prior protected activity. Regarding complainant's
assertion that on September 9, 2002, the Forest Supervisor issued him a
Letter of Requirement concerning his behavior, attendance and conduct,
the AJ noted that the Forest Supervisor had hoped that the September 9,
2002 letter would convey to complainant the necessity to make changes
in his interpersonal relationships with his colleagues and attendance.
Regarding complainant's assertion that his maxiflex schedule was
revoked, the Forest Supervisor testified that he revoked complainant's
maxiflex schedule because the telecommuting policy was a privilege,
and that complainant did not meet the requisite criteria, in the
estimation of either the Forest Supervisor or the Personnel Department.
The Forest Supervisor further testified it was difficult to keep track
of complainant's work activity because he frequently would not sign
in or out on the time sheets. The Forest Supervisor testified that
�based on again the improper conduct behavior towards myself and toward
others, [Complainant's] failure to follow instructions through all the
different things we had sent him and try to get changed, I didn't feel
that he deserved to have that. I also felt that we needed him present
on the force.�
Regarding complainant's claim that he was issued a 14-day suspension,
the Forest Supervisor testified that he issued the suspension based on
complainant's unprofessional conduct during a August 2002 Program of
Work (POW) meeting, and the complaints he received from other employees
who attended the meeting. The Forest Supervisor further stated that he
removed complainant from the POW team �based on the input I had received
and based on previous observations of how things work, people walk on eggs
to keep from getting [Complainant] mad. Enough was enough. Productivity
of the POW team was affected, the emotions of the team was affected.�
Regarding complainant's assertion that the Forest Supervisor interfered
with his attendance at a conference where he was invited to give a paper
on Port-Orford-cedar disease, the AJ noted the Forest Supervisor testified
that there were concerns with the title of complainant's paper, which
erroneously suggested an official position by the agency's Forest Service
on the issue. The Forest Supervisor further testified that regardless of
the agency's concerns, he allowed complainant to speak at the conference.
Regarding complainant's assertion that he was issued a Letter of
Reprimand for Inattention to Supervisory Responsibilities concerning
an axle failure involving one of his employees, the AJ noted that the
Forest Supervisor testified that as a manager, complainant should have
taken the initiative to get an investigation started and to find out what
had occurred. The Forest Supervisor further testified that complainant
informed him that he was too busy. The Forest Supervisor stated that
he was disappointed that the investigation took a long time, and that
it was �not what I expected from a Program Manager with his experience
and length of service.�
Regarding complainant's assertion that he received only a �marginal�
rating on the Interpersonal Relations element, the AJ noted that his
Supervisor stated during the relevant time frame, it became apparent to
the Supervisor that a trend in complainant's interpersonal relationship
with some of his co-workers developed that was �very negative, demeaning,
contentious.� The Supervisor further testified that �it became apparent
to me as his supervisor that this behavior was not supportive to a
positive work environment.� Finally, regarding complainant's claim that
the Reduction in Force (RIF) (RFAS) process was discriminatory to older
white males, the AJ concluded that the general evidence proffered does
not raise an inference of discrimination against individuals in these
protected classes or against the complainant.
The agency's final order implemented the AJ's decision.
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.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
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. We note
that complainant failed to present evidence that the agency's actions
were motivated by discriminatory animus toward complainant's race, sex,
age or in reprisal for prior protected activity. We discern no basis
to disturb the AJ's decision.
After a careful review of the record, we AFFIRM the agency's final order,
implementing the AJ's finding of no discrimination.
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
March 11, 2005
__________________
Date
1For purposes of clarity, the Commission has
numbered complainant's amended claim as claim (3).