Complainant,v.John M. McHugh, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionMay 7, 2015
0120131191 (E.E.O.C. May. 7, 2015)

0120131191

05-07-2015

Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.


Complainant,

v.

John M. McHugh,

Secretary,

Department of the Army,

Agency.

Appeal No. 0120131191

Hearing No. 570-2011-00718X

Agency No. AREUVICEN09APR01290

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's January 3, 2013 final order concerning an equal employment opportunity (EEO) complaint claiming 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Financial Technician at the Agency's 839th Transportation Battalion, Camp Darby, Italy, which is a subordinate command of the 598th Transportation Brigade located in Rotterdam, Netherlands.

On May 15, 2009, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency discriminated against him on the bases of sex (male), age (over 40), and in reprisal for prior EEO activity when he was:

1. denied an extension of his overseas tour on December 2, 2008; and

2. denied promotions, development opportunities, lead assignments and training form 1992 to February 20, 2009.

After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. On December 7, 2012, the AJ issued a decision by summary judgment in favor of the Agency.

In finding no discrimination by summary judgment, the AJ found that the record developed during the investigation established the following undisputed facts. On October 1, 1990, Complainant began overseas service as a substitute teacher at Livorno American High School in Italy. On March 24, 1991, Complainant received an appointment, not to exceed five years, as a Clerk Typist, GS-0322-03 at Camp Darby. Between September 6, 1992 and April 16, 2006, Complainant received a total of five promotions beginning with an Accounting Technician, GS-0504 position and ending with a Financial Technician, GS-0503-08 position.

In addition to the five promotions, Complainant received within-grade increases in April 1992, September 1993, September 1995, March 1997, March 1998, March 1999, March 2000, April 2001, March 2002, March 2003, and May 2005. The AJ noted the instant complaint and evidence gathered during an investigation fail to identify a job application, promotion or other professional opportunity which Complainant sought and was denied.

The record shows that Department of Defense policy is to limit civilian employment in foreign areas to five years (Department of Defense 1400.25-M, Chapter 301, Civilian Personnel Manual Sub Chapter 4, Overseas Employment, August 24, 1998). On May 14, 2008, Complainant was granted a six-month tour extension until January 27, 2009 although he had requested a twenty-four month extension. Complainant's Battalion Commander recommended denial of additional extensions. On December 2, 2008, a Colonel denied Complainant's extension requests. Complainant appealed to the Brigade Commander. However, the Brigade Commander also denied the request for additional extension. On January 13, 2009, Complainant registered in the Priority Placement Program. When offered a position in the United States, Complainant declined the job and retired from Agency employment.

The Commander of the Surface Deployment and Distribution Command (SDDC) stated that in regard to Complainant's allegation that a named Lieutenant denied his extension request, she does not recall the incident. However, the Commander stated "I do know that it was my policy to uphold the five-year rule and only authorize extensions for six months to allow the command to submit a request for personnel action to advertise the position and get a replacement. I did this to allow commands to execute their mission without degradation while the personnel system generated a replacement."

Further, the Commander stated that she would have been directly involved "in any requests for an exception to policy and approval of an extension, as I was the final approval authority for any commander requesting approval of an extension beyond the five-year rule. My normal practice was to only approve a six-month extension to allow the command to advertise the position and select a replacement. I briefed all commanders that I planned to uphold the five-year policy and that they needed to take action in advance to advertise positions coming up on a five- year term limit. I told commanders I expected them to look ahead at all their positions and plan accordingly or submit personnel actions to fill positions that would hit a five year limit."

Complainant asserted that he was treated differently from other employees when his extension request was denied. However, the Commander stated "I have no reason to believe that Complainant was treated any differently than any other employee when he was denied an extension."

The Deputy to Commander of SDDC stated that while she did not know Complainant personally, she "worked a request to extend him in an overseas position." Specifically, the Deputy stated that Complainant's extension "was sent to me as the approval authority for the command. I denied two-[year] request and approved six [months]." The Deputy further stated "I was command approval authority, they requested extension of twenty-four [months] - I approved six [months]. Employee had already exceeded five [year] rule." Furthermore, the Deputy stated that civilians' tour of service were not to exceed five years.

The Executive Officer stated that during the relevant period, he assisted Complainant "in submitting the request for extension and provided a cover letter for the request recommending approval." The Executive Officer further stated that General Schedule (GS) employees "are limited to five-year tours overseas before they must return to a CONUS position." The Executive Officer stated that the five-year rule applied to all employees across the board, and that each employee's request was considered on a case-by-case basis. Furthermore, the Executive Officer stated that the named Lieutenant "was not the approval/disapproval authority for overseas tour extensions, and therefore did not deny the complainant's request for extension."

Complainant further asserted that he was denied promotions, development opportunities, lead assignments and training. The Executive Officer stated that Complainant was under the NSPS system at the time and "was in a position coded at a certain grade. Promotion was not possible in the same position and the complainant would have had to apply for a different position of a higher grade." The Executive Officer stated that Complainant "never asked to attend any training. As a financial technician, [complainant] would have no need for WPS training."

With respect to Complainant's allegation that he was treated differently from seven identified employees that were repeatedly promoted, the Executive Officer stated "none of those employees received promotions during my time in the unit."

Based on these facts, the AJ concluded that Complainant did not establish a prima facie case of discrimination on any of the bases alleged and, even if he had, the responsible management officials articulated legitimate, non-discriminatory reasons for its actions. The AJ then determined that Complainant failed to prove, by a preponderance of the evidence, that these articulated reasons were a pretext designed to mask the true discriminatory or retaliatory motivation.

The Agency fully implemented the AJ's decision in its final order. The instant appeal followed.

ANALYSIS AND FINDINGS

A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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).

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.

On appeal, Complainant argues that the AJ erred in issuing summary judgment because there are material facts at issue. However, in order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. While Complainant has, in a very general sense, asserted that facts are in dispute, he has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute.

The AJ's findings of fact are supported by the substantial evidence in the record and that the AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. The undisputed facts fully support the AJ's determination that the responsible management officials clearly articulated legitimate, non-discriminatory reasons for the contested disciplinary decision made. After careful review of the record, as well as the arguments presented on appeal, we conclude that Complainant failed to prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask discrimination on any basis alleged and/or unlawful retaliation.

The Agency's final order implementing the AJ's decision without a hearing, finding no discrimination, is AFFIRMED.

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

May 7, 2015

__________________

Date

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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