0120113608
08-13-2013
William C. Bevan, Jr., Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.
William C. Bevan, Jr.,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.
Appeal No. 0120113608
Hearing No. 570-2009-00770X
Agency No. F-08-6513
DECISION
On July 15, 2011, Complainant filed an appeal from the Agency's June 13, 2011, final decision concerning his equal employment opportunity (EEO) complaint alleging 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Information Technology Specialist at the Agency's Federal Bureau of Investigation's Terrorism Screening Center in Crystal City, Virginia.
On September 4, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), disability (sleep apnea and back injury), and age (51) when1:
1. On May 7, 2008, Complainant was denied permission to attend the Green Computing Summit;
2. On June 10, 2008, he was denied permission to attend the Agency's IT Exchange conference;
3. On June 16, 2008, Complainant was not selected for a GS-15 Information Technology Specialist position, vacancy number 20-2008-0080;
4. One August 21, 2008, Complainant was not selected for a GS-15 Information Technology Specialist position, vacancy number 20-2008-0121; and
5. On September 17, 2008, Complainant was not selected for a GS-15 Information Technology Specialist position, vacancy number 20-2008-01008.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing but the AJ denied the hearing request. The AJ issued an Order to Show Cause on November 9, 2009, requiring Complainant to explain why he had failed to keep the AJ and the Agency updated with current contact information. Furthermore, the AJ noted that Complainant refused to accept or claim correspondence sent by the Agency to Complainant's address of record. November 27, 2009, Complainant responded to the AJ's order by asking for an attorney and asserting that another individual had collected his mail without his consent. Complainant also noted that he has been out of work; he has participated in three internal investigations; and placed on a Performance Improvement Plan. In addition, Complainant baldly stated that he has not delayed the processing of the complaint. The AJ found that Complainant's response failed to demonstrate good cause why sanctions should not be imposed for his failure to cooperate in the processing of the complaint. The AJ found that Complainant proffered excuses but did not demonstrate good cause to avoid the imposition of sanctions. Therefore, based on the record, the AJ cancelled the hearing on November 30, 2009.
The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision initially clarified that there were really two issues involved in the complaint at hand. The Agency noted that Complainant alleged discrimination based on race, age, and disability when he was denied training and when he was denied a 2007 performance appraisal rating (PAR) and due to the lack of PAR he was not selected for the three positions. The Agency dismissed Complainant's claim of discrimination based on the 2007 PAR noting that the matter was raised in an untimely manner.
Assuming that Complainant raised his 2007 PAR claim in a timely manner, the Agency reviewed whether Complainant was subjected to discrimination based on his race, age and/or disability. The Agency found that the Chief Engineer provided legitimate nondiscriminatory reasons for the denial of training and Complainant's 2007 PAR. The Agency then found that Complainant failed to demonstrate that the Agency's reasons were pretext for discrimination. As such, the Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
This appeal followed without specific comment.
ANALYSIS AND FINDINGS
Sanction
An AJ has the authority to sanction either party for failure without good cause shown to fully comply with an order. 29 C.F.R. � 1614.109(f)(3). Such sanctions may include an adverse inference that the requested information would have reflected unfavorably on the party refusing to provide the requested information, exclusion of other evidence offered by the party refusing to provide the requested information, or issuance of a decision fully or partially in favor of the opposing party, or other actions, as appropriate. Id. However, such sanctions must be tailored in each case to appropriately address the underlying conduct of the party being sanctioned. A sanction may be used to both deter the non-complying party from similar conduct in the future, as well as to equitably remedy the opposing party. If a lesser sanction would suffice to deter the conduct and to equitably remedy the opposing party, an AJ may be abusing her discretion to impose a harsher sanction. Hale v. Dep't of Justice (U.S. Marshals Service), EEOC Appeal No. 01A03341 (Dec. 8, 2000). We note that Complainant failed to challenge the AJ's sanction decision. Upon review, we find that the AJ's dismissal of the hearing was an appropriate sanction for Complainant's actions.
Standard of Review
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) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Disparate Treatment
The Agency noted that although Complainant alleged discrimination when he was not selected for three positions, the real crux of his complaint involved the Chief Engineer's failure to provide him with a 2007 PAR. As such, we shall review whether Complainant has shown that he was subjected to disparate treatement based on his race, disability and age when he was denied two training requests and not provided with 2007 PAR.
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she 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. 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. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary's Honor Ctr. 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
For the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1). Upon review, we find that the Chief Engineer provided legitimate, nondiscriminatory reasons for its actions. As to the denial of training, the Chief Engineer noted that Complainant had been on suspension in early 2008, and was not assigned network engineer tasks. As such, the Chief Engineer did not believe that either the Green Computing Summit or the IT Exchange Conference was directly related to Complainant's duties. Further, he indicated that another employee was sent to the IT Exchange Conference because he had attended similar events before and made better use of the information he gained. Therefore, the Agency did not send Complainant to the training events. As to the 2007 PAR, the Chief Engineer averred that Complainant, at that time, was assigned network engineer and Contractor Officer Technical Representative (COTR) duties. The Chief Engineer found that Complainant had not been performing work consistent with his performance plan. He contacted Human Resources about how to issue a 2007 PAR for an individual who's tasking did not relate to his performance plan. The Chief Engineer was informed that he did not need to submit a PAR but should issue Complainant a new performance plan and monitor his job performance. Complainant returned from a suspension in January 2008, and due to conflicting schedules, the Chief Engineer was unable to meet with Complainant that month. On February 14, 2008, the Chief Engineer was able to inform Complainant that he would be receiving a new performance plan. Due to an injury, Complainant was out on leave for months and the Chief Engineer could not complete the performance review. As such, the next PAR Complainant received was in December 2008.
As such, we determine that the Chief Engineer has provided legitimate, nondiscriminatory reasons for his actions. Accordingly, we turn to Complainant to show that the Agency's reasons were pretext. Upon review, we conclude that Complainant has failed to do so.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision finding no discrimination.
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
August 13, 2013
__________________
Date
1 This case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because this matter occurred in 2008, the Commission will use the analytical framework as it existed before the enactment of the ADA Amendments Act of 2008, to determine whether Complainant is an individual with a disability.
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0120113608
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120113608