Matthew L. Thomas, Complainant,v.Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionFeb 23, 2007
0120061693 (E.E.O.C. Feb. 23, 2007)

0120061693

02-23-2007

Matthew L. Thomas, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.


Matthew L. Thomas,

Complainant,

v.

Dr. Francis J. Harvey,

Secretary,

Department of the Army,

Agency.

Appeal No. 01200616931

Agency No. AREURWUE03JUN0001

Hearing No. 100-2004-00968X

DECISION

Complainant filed an appeal with this Commission concerning his complaint

of unlawful employment discrimination. Complainant alleged that he

was subjected to discrimination on the basis of race (African-American)

when, on June 12, 2003, the Directorate of Community Activities detailed

him from his position of the Chief of Child and Youth Services (CYS)

Division.

On October 7, 2005, 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 November 14, 2005, the agency issued a decision finding

no discrimination. The agency fully implemented the AJ's decision.

Complainant now appeals 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.

We find that the agency articulated legitimate, nondiscriminatory reasons

for the reassignment. The Directorate of Community Activities (DCA)

stated that, in December 2002, the Civilian Personnel Operations Center

determined that complainant was not qualified by Priority Placement

Program (PPP) definition for placement in most Army GS-1701 positions,

including the Chief of CYS position that complainant was occupying, and

requested that the series be deleted from complainant's PPP registration.

The DCA asserted that he was informed by the Supervisory Human Resources

Specialist that complainant's education did not meet certain Office of

Personnel Management (OPM) requirements for the Chief of CYS position.

The DCA claimed that he wanted a permanent employee in the Chief of

CYS position that complainant was occupying while in the PPP. The DCA

explained that the Well-Being Program was a new mission that he had

been given, and on June 12, 2003, he verbally detailed complainant to

the Well-Being Program Specialist position so that complainant could

develop the organization. The DCA claimed that he provided complainant

an unclassified set of duties at that time because the position was in

the process of being established. On December 1, 2003, complainant was

reassigned to the Well-Being Program Specialist position, following

classification of the position. The DCA articulated that management

reassigned complainant to the Well-Being Program Specialist position to

provide him expanded opportunities for placement in the PPP.

The Commission finds that complainant failed to rebut the agency's

articulated legitimate, nondiscriminatory reasons for the reassignment

decision. Complainant failed to show, by a preponderance of the evidence,

that he was discriminated against on the basis of race.

The agency's decision finding no discrimination 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 23, 2007

__________________

Date

1 Due to a new data system, your case has been redesignated with the

above referenced appeal number.

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0120061693

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120061693