0120080093
01-27-2010
Charles Whitmore, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, (Natural Resources Conservation Service), Agency.
Charles Whitmore,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
(Natural Resources Conservation Service),
Agency.
Appeal No. 0120080093
Hearing No. 100-2006-00141X
Agency No. NRCS-2005-00182
DECISION
Complainant filed an appeal with this Commission concerning his complaint
of unlawful employment discrimination. Complainant alleges discrimination
on the bases of race (African-American), color (black) and age (64)
when, between February 21 and March 1, 2005, complainant learned that,
in 2004, he had been intentionally given false information by management
regarding the reason for the reorganization completed on October 1,
2004, that resulted in complainant losing his position as Regional
Conservationist in Madison, Wisconsin.1
On August 15, 2007, an EEOC Administrative Judge (AJ) issued a decision
without a hearing finding that there was no genuine issue of material fact
in dispute, and concluded that complainant had not been discriminated
against. Specifically, the AJ found the agency presented legitimate,
nondiscriminatory reasons for its actions, which complainant failed
to rebut. On August 27, 2007, the agency, fully implementing the AJ's
decision, issued a decision finding no discrimination. Complainant
appealed from that decision.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
The record reveals that during the relevant time complainant worked
at the agency's National Resources Conservation Service (NRCS).
He worked as a Regional Conservationist, SES (Senior Executive Service),
Midwest Region in Madison Wisconsin from 1995-2004. In 2004, the NRCS
underwent a nationwide reorganization and its six Regional Offices
were realigned into three Regional Assistant Chief (RAC) Offices for
the East, Central and West regions. As a result of the reorganization,
the six Regional Conservationist positions were abolished. The Regional
Conservationists and their staff of 10 to 20 employees were replaced by
three Regional Assistant Chiefs with two assistants each. The Regional
Conservationist position was a career SES position and the newly created
Regional Assistant Chief position was a politically appointed non-career
SES position. Beginning in May 2004, complainant began working as an
Associate Deputy Chief for Programs, SES, in Washington, DC.
Upon review, we find summary judgment was appropriate as no genuine issues
of material fact exist. We find that the agency articulated a legitimate,
nondiscriminatory reason for its actions in 2004. The agency noted that
the reason for the nationwide reorganization was to streamline delivery
and reduce the number of offices, in effect "delayering" the organization.
Specifically, the Chief of Natural Resources Conservation Service noted
that many tasks originally assigned to regional offices when they were
created were now being performed elsewhere, necessitating an update
to the agency's organizational structure. The Chief summarized the
purpose of the reorganization was: "to strengthen multi-disciplinary
technology support to the States; consolidate similar functions to
enhance communication and coordination; align human capital resources with
missions, goals and organizational objectives; streamline processes and
procedures; provide an improved career ladder for technical personnel;
and better balance Deputy areas and workload at the national level."
The Chief stated that the RACs were hired pursuant to the reorganization
in July/August 2004. The Chief asserted that initially the RACs' duty
location was in Washington, D.C., to enable him to have an opportunity
to assess their performance in their new position. The Chief asserted
that, effective December 2004, he changed the duty location of the RACs
to coincide with their respective home locations because each RAC was
traveling extensively within their respective regions, and it was more
cost effective and efficient to have them travel from their respective
homes, rather than from Washington D.C. The Chief claimed that it was
not known at the time the RACs were selected that their duty locations
would ultimately change.
Complainant failed to rebut the agency's articulated legitimate,
nondiscriminatory reason for the reassignment. Furthermore, complainant
failed to show that the agency's action was motivated by discrimination.
Moreover, complainant failed to show, by a preponderance of the evidence,
that he was discriminated against on the bases of race, color or age.
Accordingly, the agency's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
January 27, 2010
__________________
Date
1 In his affidavit, complainant alleges that he was not provided an
opportunity for a Regional Assistant Chief position. The AJ stated that
the issue before her did not include a non-selection claim. Accordingly,
the AJ said that she would consider complainant's allegations in
this regard only as background and to the extent that they relate to
the accepted issue. Since there is no indication in the record that
complainant challenged this issue with the AJ or raised the matter in
the instant appeal, we will not address this issue in this decision.
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0120080093
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013