01A04039
06-07-2002
Dennis L. Menard, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Dennis L. Menard v. Department of the Army
01A04039
06-07-02
.
Dennis L. Menard,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A04039
Agency No. EU-98-AR-006-E
Hearing No. 100-99-7406X
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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is accepted
pursuant to 29 C.F.R. � 1614.405.
The record reveals that complainant, a Army Community Services Officer
(ACS) at the agency's 222nd Base Support Battalion, Baumholder, Germany
facility, filed a formal EEO complaint on August 13, 1997, alleging that
the agency had discriminated against him on the bases of sex (Male),
disability (voice box cancer) and age (54) when (a) his Overseas Tour
Duty was not extended; and (b) he was detailed from his ACS position to
a Special Projects Officer (SPO) position.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The record indicates that complainant was
initially hired in 1983. His tour was subject to a five year limitation,
but he was granted various extensions. By letter dated May 19, 1997,
complainant was informed that his overseas tour would end on December
27, 1997. At the same time, he was detailed from his ACS position to a
SPO position in the Operations office in Baumholder, until the end of
his tour. On July 18, 1997, C-1 (male, over 40) replaced complainant
as the ACS officer.
A-1, complainant's supervisor, indicated that, in October 1996,
management began enforcing a policy of not extending tours unless
they were for critical or mission essential positions, or if there
was a compassionate reason. In the past, A-1 noted, tours had been
routinely extended. A-1 did not see complainant as being in a mission
essential position. Therefore, he felt that he was unable to justify
extending complainant's tour. With respect to complainant's detail,
A-1 stated that complainant's background, organizational skills, and
links with the community made him well-suited for coordinating duties
in Baumholder. By placing complainant in the detail, A-1 maintained
that he was able to quickly replace complainant.
The AJ issued a decision without a hearing, finding no discrimination.
The AJ, without making a determination on whether complainant established
a prima facie case of sex, age or disability discrimination, 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 mask unlawful discrimination. In reaching this conclusion, the AJ
noted complainant's contention that his position was mission essential.
The AJ found that this bare assertion by complainant, without supporting
evidence, was insufficient to show pretext. Likewise, the AJ was
unpersuaded by complainant's mere assertions, again without evidence,
that he was not qualified for his detail position because it required a
security clearance and that the overseas tour of C-1 should also have
expired.<1>
The agency's final order implemented the AJ's decision. On appeal,
complainant, in large part, restates arguments previously made during
the investigation. After a careful review of the record, the Commission
finds that the grant of summary judgment was appropriate, as no genuine
dispute of material fact exists. We find that the AJ's decision
properly summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. Further, construing the evidence to
be most favorable to complainant, we note that complainant failed to
present evidence that any of the agency's actions were motivated by
discriminatory animus toward complainant's protected classes.<2>
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
_____06-07-02_____________
Date
1According to complainant, C-1 was �illegally extended� by the Area
Support Group Commander in January or February 1997, for a period of
two years. Complainant also maintained that the Area Support Group
was a �higher headquarters� of the 222nd Base Support Battalion.
Therefore, even if we construed the evidence in a light most favorable
to complainant, his statement indicates that the decision to extend
C-1 was not made by A-1 and occurred prior to the determination that
complainant's tour would not be extended.
2In reaching the above decision, we assumed, for analytical purposes only,
that complainant was an individual with a disability as alleged.