01a54796
02-14-2006
Brian K. Newsome, Complainant, v. John W. Snow, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Brian K. Newsome v. Department of the Treasury
01A54796
February 14, 2006
.
Brian K. Newsome,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
(Internal Revenue Service),
Agency.
Appeal No. 01A54796
Agency No. 04-2195
Hearing No. 110-2005-00026X
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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant, a Tax Examining Technician, GS-592-06, at the agency's Input
Corrections Operations, Atlanta Submission Processing, W&I Service Centers
in Chamblee, Georgia, filed a formal EEO complaint on February 3, 2004.
Therein, complainant claimed that the agency discriminated against him
in reprisal for prior EEO activity when:
(1) on December 16, 2003, he received his annual performance appraisal,
after being detailed to a lower grade position for nine months; and
(2) on December 17, 2003, he was placed on a three-day suspension.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). Following the issuance of a Show Cause Order,
the AJ dismissed claim (2) under 29 C.F.R. � 1614.107(a)(4), on December
6, 2004, finding that complainant had elected to pursue the three-day
suspension under a negotiated grievance procedure.
Following a hearing concerning claim (1), the AJ issued a bench decision
on May 16, 2005, finding no discrimination.
In his bench decision, the AJ found sufficient evidence to support a
nexus between the agency's actions and complainant's prior protected
activity. Consequently, the AJ found that complainant established a
prima facie case of reprisal discrimination. Further, the AJ found
that the agency articulated legitimate, nondiscriminatory reasons for
its actions. Finally, the AJ found that complainant did not establish
that more likely than not, the agency's articulated reasons were a
pretext to make unlawful retaliation.
On May 27, 2005, the agency issued a final order implementing the AJ's
decision finding no discrimination regarding claim (1), and dismissing
claim (2).
Complainant's first-level supervisor (S1) testified that she prepared
complainant's annual performance appraisal for the period of November 1,
2002 to October 31, 2003. S1 further testified that she gave complainant
a �minimally successful� rating, although he was detailed to a lower grade
position for nine months during the relevant time. The record reflects
that in complainant's performance appraisal, there are five Critical Job
Elements (CJE). S1 stated that complainant received a rating of �three�
under CJE No. 1 "Employee Satisfaction - Employee Contribution."
S1 stated that complainant "did not interact with management in a
professional way at all times." S1 stated that complainant would do
what he was instructed to do, and that he "didn't do any outstanding
involvements.� S1 stated that complainant's being written up on
three separate occasions affected his performance appraisal, especially
CJE No. 1 (on September 29, 2003, he was cited for inappropriate and
disruptive behavior; on October 6, 2003, he was issued a memorandum for
refusal to follow work directive; and on December 5, 2003, he was issued
a three-day suspension).
S1 stated that complainant received a rating of �three� under CJE
No. 2 "Customer Satisfaction - Knowledge." S1 stated that complainant
only had exceeded one of the three aspects, which was job knowledge.
S1 stated that complainant could have exceeded in the two aspects, Problem
Identification and Work Flow, if complainant had completed his work "and
come to me and ask for additional work to help move the unit's inventory."
S1 stated that complainant received a rating of �three� under CJE No. 3
"Customer Satisfaction - Application." S1 stated that complainant could
have received a �four� rating if he communicated with management and
followed the procedures. Specifically, S1 stated that "there were repeat
cases that he refused to handle properly."
S1 stated that complainant received a rating of �five� under CJE No. 4
"Business Results - Quality." S1 stated that the �five� rating is
the highest rating an employee can receive. S1 stated that complainant
received a �two� rating under CJE No. 5 "Business Results - Efficiency."
S1 stated that "based on the individual performance report that was for
that period of time, his score was 82.848, which was a rating of �two'."
Furthermore, S1 stated that complainant's prior protected activity was
not a factor in her determination to give him a minimally successful
rating for the period of November 1, 2002 to October 31, 2003.
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).
The Commission finds that the agency articulated a legitimate,
nondiscriminatory reason for its actions, as discussed above. Complainant
has not shown that the agency's articulated reasons were a pretext for
discrimination.
Accordingly, the agency's final order implementing the AJ's finding of
no discrimination concerning claim (1) is AFFIRMED.
Claim (2)
Complainant claimed that he was discriminated against in reprisal
for prior EEO activity when on December 17, 2003, he was placed on
a three-day suspension. In his December 6, 2004 partial dismissal,
the AJ dismissed claim (2) under 29 C.F.R. � 1614.107(a)(4), finding
that complainant had elected to pursue the three-day suspension under
a negotiated grievance procedure.
Under 29 C.F.R. � 1614.301(a) a person may file a complaint under
either the negotiated grievance procedure or the EEO procedure,
but not both. Furthermore, a person "who files a grievance with
an agency...may not thereafter file a (discrimination) complaint on
the same matter...irrespective of whether...the grievance has raised
an issue of discrimination." Id. The record shows that complainant
filed a grievance on his three-day suspension on November 21, 2003 and
filed his formal EEO complaint on the same matter on February 3, 2004.
Because complainant filed his grievance before filing his EEO complaint,
under the applicable regulations, his EEO complaint must be dismissed.
Therefore, we find that the AJ properly dismissed claim (2).
Accordingly, the agency's final order implementing the AJ's dismissal
of claim (2) is AFFIRMED.
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
February 14, 2006
__________________
Date