Keith W. Bloyd v. Department of the Army
01A34731
05-14-04
.



Keith W. Bloyd,
Complainant,

v.

R. L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.

Appeal  No. 01A34731

Agency No. ARJDHQS02MAY0010


DECISION

Keith W. Bloyd (hereinafter referred to as complainant) filed an appeal
from the July 28, 2003, final decision of the Department of the Army
(hereinafter referred to as the agency) concerning a complaint of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621
et seq.  The appeal is timely filed (see 29 C.F.R. § 1614.402(a)) and
is accepted in accordance with 29 C.F.R. § 1614.405.  For the reasons
that follow, the agency's decision is AFFIRMED.

BACKGROUND

Complainant filed his formal complaint on July 20, 2002, claiming
discrimination based on sex, race/color (white), and age (DOB 11-5-1954)
when he was removed in April 2002, during his one-year probationary
period.  Following an investigation,<1> the agency issued a final
agency decision (FAD), finding that complainant failed to establish a
prima facie case on any of the alleged bases and that, even if he had,
the agency articulated legitimate, nondiscriminatory reasons for his
removal, in response to which complainant did not demonstrate pretext.

Complainant was hired as an Auditor, GS-7, with the Audit Agency at the
Redstone Arsenal in Huntsville, Alabama, in August 2001.  In December
2001, following his four-month review, his rater and supervisor (S1)
discussed with him his progress in his training plan, including his
performance problems.  In April 2002, following his eight-month review,
the agency terminated him.  The agency explained that complainant was
terminated  for poor performance, pointing to his lack of attention to
detail and failure to perform the required analysis for his project.

In his appeal, complainant contended that he established a prima facie
case by showing that management and co-workers conspired against him;
offered comments on his complaint and 'fine-tuned' his contentions;
pointed out errors in the Report of Investigation (ROI); sought amendment
to his complaint to request damages in remedy; and submitted two letters
he sent to the agency dated July 2003, commenting on the agency's
EEO processes, including his objection to the investigation, and the
different treatment accorded female trainees.  The agency submitted
a response to complainant's contentions, arguing that complainant did
not establish a prima facie case; that he was terminated for his poor
performance during his eight-month tenure and not one or two episodes;
that he received the same training as others; that his claim of reprisal
was without foundation; and that the investigator was not biased.

ANALYSIS AND FINDINGS

Generally, claims of disparate treatment are examined under the tripartite
analysis first enunciated in McDonnell Douglas Corporation v. Green,
411 U.S. 792 (1973).  Complainant 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).  If the agency is
successful, the burden reverts back to the complainant to demonstrate by
a preponderance of the evidence that the agency's reasons were a pretext
for discrimination.  At all times, complainant retains the burden of
persuasion, and it is his obligation to show by a preponderance of the
evidence that the agency's reasons were not true and that it acted on the
basis of a prohibited discriminatory reason.  St. Mary's Honor Center
v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 715-716 (1983).

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 Service Board
of Governors v. Aikens, 460 U.S. at 713-714; 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).<2>

Here, in response to complainant's claims, agency officials explained
that complainant's work products contained numerous errors and
showed an inattention to detail.  Also, he often failed to perform
the required analysis for his project, and he expressed a reluctance
to make judgments, which was part of his responsibility as an auditor.
The agency asserted that complainant received the training provided to
all probationary employees, including on-the-job.  The managers involved
in his termination denied that anything other than his poor performance
was considered by the agency when it acted to remove him.  We find that
the agency articulated legitimate, nondiscriminatory reasons for its
action terminating complainant.<3>

Since the agency articulated legitimate, nondiscriminatory reasons for
its actions, we move to the third step in the analysis.  The burden
returns to complainant to demonstrate by a preponderance of the evidence
that the agency's articulated reasons were a pretext, or a sham, for
discrimination.  Complainant must show that the agency's action was more
likely than not motivated by discrimination, that is, that the action
was influenced by legally impermissible criteria and that its reasons for
its action were not the true reasons.  St. Mary's Honor Center v. Hicks,
supra.  Absent a showing that the agency's articulated reason was used
as a tool to discriminate against him, complainant cannot prevail.

In an attempt to demonstrate pretext, complainant contended that he
was not properly trained and that he was sabotaged by co-workers and
managers.  In support, he averred that on-the-job training form was
blank and that some female trainees were given additional time to learn
the job.  With regard to the training form, the agency stated that the
form is filled out when training is completed and that complainant was
terminated prior to the end of training because of poor performance.
Although complainant argued that others (females) were treated
differently and that he was undermined by managers and co-workers,
he has not presented probative evidence in support of his contentions.
Further, he has not refuted the agency's characterization of his work,
shown that the agency's reasons were untrue, or demonstrated that his
termination was motivated by sex, race, or age discrimination.  We find
that the evidence of record is insufficient to establish pretext and that
complainant has not demonstrated that the agency's articulated reasons
for its action were pretextual.  We find therefore that the agency did not
discriminate against complainant on the basis of his sex, race, or age.<4>

After a review of the record, including statements and arguments not
addressed herein, we find that the preponderance of the evidence of
record does not establish that discrimination occurred.

CONCLUSION

Accordingly, the agency's decision was proper and 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


____05-14-04______________
Date




1We note that complainant did not participate in the investigation,
choosing to leave the fact-finding conference; thus, the record does
not contain a sworn statement from him.  After the investigation, he
requested a final agency decision (FAD) without a hearing.

2Complainant is correct that the first step in the McDonnell Douglas
analysis requires that a complainant need only present evidence which, if
unrebutted, would support an inference that the agency's actions resulted
from discrimination.  See O'Connor v. Consolidated Coin Caters Corp., 517
U.S. 308, 312 (1996); Enforcement Guidance on O'Connor v. Consolidated
Coin Caters Corp., EEOC Notice No. 915.002, n. 4 (September 18, 1996).
For purposes of analysis only, we will assume, arguendo, that complainant
established a prima facie case discrimination on all bases alleged.

3The agency's burden in the second step of the analysis is one of
production, and it must  provide a specific, clear, and individualized
explanation for the treatment accorded the affected employee.  Complainant
is entitled to some rationale for his termination so that he may attempt
to satisfy his ultimate burden of proving that the agency's explanation
was a pretext for discrimination.  In the matter before us, we find that
the agency has met its burden.

4To the extent that complainant raised a reprisal basis, following the
three-part analysis and assuming he established a prima facie case
of reprisal, we have found that the agency articulated legitimate,
nondiscriminatory reasons for complainant's termination and that he has
not demonstrated that the agency's reasons were pretextual.

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