01a52122
02-10-2006
Douglas B. McMillin, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Douglas B. McMillin v. Department of the Army
01A52122
February 10, 2006
.
Douglas B. McMillin,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A52122
Agency No. EU-02-HR-07
Hearing No. 100-2003-07902X
DECISION
Complainant filed an appeal from the agency's final action dated December
13, 2004, finding no discrimination with regard to his complaint.
The record indicates that complainant, a Budget Analyst, GS-11, in
the agency's 6th Area Support Group (ASG), Directorate of Community
Activities (DCA), Financial Management Division in Stuttgart, Germany,
filed his complaint, dated September 6, 2002, amended in December 2002,
alleging the denial of the extension to remain in Germany, and the
agency's failure to respond to his request for reasonable accommodation.
Following the completion of the investigation of the complaint,
complainant requested a hearing before an EEOC Administrative Judge (AJ).
During the pendency of hearing, complainant filed a motion to amend
his complaint. On November 17, 2003, the AJ granted the complainant's
motion and ordered the agency to conduct a supplemental investigation on
the subject matter. After the investigation, in May 2004, the parties
agreed the identification of issue and stipulations of fact that the
case be proceeded only on the amended issue which articulated as follows:
Was complainant discriminated against due to reprisal when he was required
to accept under protest a reassignment to Dugway Proving Ground, Utah,
under the Priority Placement Program (PPP) after being denied an extension
to remain in the overseas area to continue his medical treatment?
On November 26, 2004, the AJ issued a decision without holding a hearing,
finding no discrimination. The agency's final action implemented the
AJ's 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.
Upon review, the Commission finds that the grant of summary judgment
was appropriate, as no genuine dispute of material fact exists.
Specifically, the AJ, granting the summary judgement for the agency,
noted that the summary judgement was appropriate where there was no
prima facie case or, if there was, where complainant failed to proffer
evidence that would show that the employer's explanation was pretexual.
After a review of the record, the Commission finds that, assuming arguendo
that complainant had established a prima facie case of discrimination,
the agency has articulated legitimate non-discriminatory reasons for its
action. Specifically, the agency stated that when complainant initially
accepted the Budget Analyst position in Stuttgart, Germany, on December
26, 1995, he became subject to a 5-year overseas tour limitation under
the agency's regulations. Complainant's overseas tour was to end on
December 25, 2000. However, the record indicates that upon requests,
the agency granted complainant's tour extensions on a number of occasions
until the alleged reassignment on July 7, 2003.
Specifically, the agency stated that initially, complainant's tour
extension was granted to December 25,2001. Subsequently, in December
2001, complainant was approved a short-term extension to March 2002,
and then to June 2002, so that his son could finish the school year,
and then, to November 1, 2002. At the time of the final extension
approval, complainant was notified that this was his final tour
extension and that he must register for PPP no later than May 1,2002.
On May 3, 2002, complainant registered with the PPP through the Civilian
Personnel Advisory Center (CPAC) in Stuttgart, Germany. On January 16,
2003, complainant asked the agency that he be taken out of the PPP and
allowed to stay overseas indefinitely, i.e., until his health improved.
On January 27, 2003, the Agency's 6th ASG Chief of Staff denied
complainant's request.
On January 17, 2003, the agency's PPP matched complainant with a job
at Dugway Proving Grounds, Utah. The servicing CPAC for Dugway Proving
Grounds requested that the Stuttgart CPAC forward complainant's resume.
The Stuttgart CPAC forwarded complainant's resume accordingly. The
agency stated that its Human Resources Specialist in the Stuttgart CPAC
determined that complainant was well-qualified for the position. Thus,
she faxed complainant's position description to a team leader for PPP
Determinations in the Civilian Personnel Operations Center (CPOC) West.
The agency's Human Resources Specialist in the servicing CPAC for Dugway
Proving Grounds concurred that complainant was well-qualified for the
position and approved the job offer. The team leader for PPP notified
the Stuttgart Human Resources Specialist, who in turn offered the job to
complainant on March 14, 2003. On March 17,2003, complainant accepted
the alleged job/reassignment.<1>
After a thorough review of the record, including the parties' appeal
brief, the Commission finds that the agency articulated legitimate,
non-discriminatory reasons for the alleged reassignment. On appeal,
complainant contends that the agency's denial of his overseas tour
extension request on January 27, 2003, was a proposed action which
merged with the agency's final decision to effectuate the PPP. However,
the AJ found, and we agree, that the extension issue was a discrete,
actionable event, and not a proposed action. The AJ further found, and
we agree, that the extension issue was not part of the instant complaint,
only the PPP placement. The record clearly indicates that the parties
entered into the stipulation in May 2004, identifying the alleged PPP
as the claim of the instant complaint. After a review of the record,
the Commission finds that complainant failed to provide any evidence
that the articulated reasons were pretextual or that any agency action
was motivated by discrimination.
Accordingly, the agency's final action 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 10, 2006
__________________
Date
1The record indicates that complainant subsequently filed a request
to the agency that they review his PPP offer. On May 23, 2003, the
agency determined that the PPP offer was valid, and that complainant's
current medical condition did not provide a compelling reason to
allow him to decline the position and remain in the PPP.