01A14466
10-17-2002
William L. Shaw, Complainant, v. Donald L. Evans, Secretary, Department of Commerce, (Bureau of Census), Agency.
William L. Shaw v. Department of Commerce (Bureau of Census)
01A14466
October 17, 2002
.
William L. Shaw,
Complainant,
v.
Donald L. Evans,
Secretary,
Department of Commerce,
(Bureau of Census),
Agency.
Appeal No. 01A14466
Agency No. 00-63-02817D
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
affirms the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as an Assistant Manager for Recruiting at the agency's Gastonia
Local Census Office, Gastonia, North Carolina. Complainant sought EEO
counseling and subsequently filed a formal complaint on August 11, 2000,
alleging that he was discriminated against on the basis of sex (male)
when he was terminated, effective June 1, 2000.<1>
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its FAD, the agency concluded that assuming arguendo, complainant
established a prima facie case of sex discrimination, it nonetheless
articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, the FAD found that complainant was terminated because he
had failed to meet his recruiting goals, had been counseled about his poor
performance, yet refused to accept the assistance offered to him in order
to help bring his performance up to the required level. The FAD found
that complainant failed to show that these legitimate, nondiscriminatory
reasons were mere pretext to mask unlawful sex discrimination.
On appeal, complainant reiterates his contention that he was terminated
due to sex discrimination, and calls into questions the veracity of
many of the statements of management officials regarding the reasons
for his termination. The agency requests that we affirm its FAD.
Complainant has alleged a claim of disparate treatment which 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. 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 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.
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. United States 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).
Here, the Commission finds that assuming, arguendo, complainant
established a prima facie case of sex discrimination, the agency
articulated legitimate, nondiscriminatory reasons for its actions.
The record reflects that complainant's supervisor (S1: male) stated in his
affidavit that complainant had not been meeting his goals, despite being
counseled and provided with additional assistance, and that he recommended
complainant for termination after learning that complainant had refused
to cooperate with the individual brought in to assist him with meeting
his performance goals. (Report of Investigation, Exhibit 32, page 1-2).
While complainant has presented several challenges to the agency's stated
reasons for his termination, he has presented insufficient evidence to
establish, by a preponderance of the evidence, that he was terminated
as a result of discriminatory animus toward his sex. Therefore, after
a careful review of the record, including complainant's contentions on
appeal, the agency's response, and arguments and evidence not specifically
addressed in this decision, we affirm the FAD.
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
October 17, 2002
__________________
Date
1 In his formal complaint complainant also alleged discrimination
on the basis of age, however that basis was dismissed by the agency.
As complainant did not challenge this dismissal on appeal, it will not
be addressed in this decision.