Thomas M. Jimerson, Complainant,v.Mike Johanns, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionMar 11, 2005
01a51121 (E.E.O.C. Mar. 11, 2005)

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(2) management rescinded his government check writing authority,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).