01a53463_r
05-24-2006
Willie Glover, Jr., Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Appeal No. 01A53463 Agency No. DON 03-65886-015 Hearing No. 150-2004-00225X
Willie Glover, Jr. v. Department of the Navy
01A53463
May 24, 2006
.
Willie Glover, Jr.,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Appeal No. 01A53463
Agency No. DON 03-65886-015<1>
Hearing No. 150-2004-00225X
DECISION
Complainant initiated an appeal from the agency's final order concerning
his equal employment opportunity (EEO) complaint of unlawful employment
discrimination. For the following reasons, the Commission AFFIRMS the
agency's final order.
The record reveals that complainant, an Aerospace Engineer, GS-13
at the agency's Naval Air Deport, Naval Air Station, Jacksonville,
Florida facility, filed formal EEO complaints, (agency case numbers DON
02-65886-018, filed on July 8, 2002; DON 03-65886-006 filed on November
18 2002; and DON 03-65886-015 filed on January 9, 2003), alleging
that the agency discriminated against him on the bases of race (Black
(African-American)) and in reprisal for prior EEO activity when:
(2) (a) On January 31, 2002, complainant was non-selected for the
position of P-3 Team Leader, General Engineer, GS-801-14;
(b) On October 27, 2002 complainant was non-selected for the position
of Supervisory Aerospace Engineer, GS-861-14 in Code 4.3;
On July 16, 2002, complainant was non-selected for the position of
Supervisory Aerospace Engineer, GS-861-14 in Code 4.4.8.
(1) From 1998 through May 2002, complainant received lower
performance evaluations;
(2) Complainant was denied performance awards from 1998 through
May of 2002;
Complainant's duties and responsibilities were diminished from June
of 1999 through February 2002 by funding cuts, loss of personnel and
internal reorganizations.
(a) The command's legal office provided illegal representation to
management officials at the agency and misused their positions and
authority to mislead other governmental agencies. Agency attorneys have
also attempted to conceal discriminatory actions by agency officials
and have ignored statutes and regulations.
On September 18, 1998, complainant was non-selected for the position
of Aerospace Engineer, GS-861-14;
On December 18, 2001, complainant was non-selected for the position of
Supervisory Industrial Specialist, GS-1104-14;
On October 15, 2001, complainant was non-selected for the position of
Supervisory Logistics Management Specialist, GS-346-14;
The agency breached a settlement agreement from August 12, 1994, when
the agency failed to detail him to several positions in the agency.
By letter to complainant dated May 6, 2003, in which the agency accepted
claims (2)(a) through (2)(d), the agency dismissed claim (5)(a) pursuant
to 29 C.F.R. � 1614.107(a)(8) on the grounds that this claim alleged
dissatisfaction with the processing of complainant's EEO complaints.
The agency also dismissed claims (5)(b) pursuant to 29 C.F.R. �
1614.107(a)(1) on the grounds that complainant had raised the same
matter in a prior complaint. Additionally, the agency dismissed claims
(5)(c) and (5)(d) pursuant to 29 C.F.R. � 1614.107(a)(2) on the grounds
that these claims were untimely. Lastly, the agency advised complainant
that claim (5)(e) alleged breach of a prior EEO settlement agreement and
his allegation was processed in accordance with Commission regulations
regarding breach claims on January 30, 2003.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). At the outset of the hearing, the AJ affirmed the agency's
partial dismissal of complainant's claims as stated in the agency's letter
of May 6, 2003, and noted complainant's withdrawal of his claims related
to performance evaluations (claim (2)(d)(1)) and awards (claim (2)(d)(2)).
Following a hearing, the AJ issued a decision, dated January 18, 2005,
finding no discrimination.
The AJ concluded that complainant established a prima facie case of race
discrimination because the selectees, for each of the three positions
described in claims (2)(a), (2)(b) and (2)(c), were not in complainant's
protected class, and were selected for the positions for which complainant
had also applied.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that for each
selection, the agency assembled a panel of five members, who rated
the applications individually, then compared the points assigned to
each candidate's application and together determined which candidates
would be interviewed and then recommended to the selecting official.
The AJ noted that the testimony from the panel members presented at the
hearing provided detailed information regarding the points assigned for
experience and education, as well as the procedure the panel undertook for
reconciling candidate scores. Further, the AJ noted that complainant's
name was not forwarded to the selecting official for consideration for
any of the three positions.
The AJ found that complainant did not establish a prima facie case of
reprisal discrimination. Specifically, the AJ found that only some
of the selection panel members were aware of complainant's prior EEO
activity and that their knowledge was not discussed during the rating
and recommendation process. Further, the AJ reasoned, that while the
selecting official was aware of complainant's prior EEO activity,
because complainant's name was never forwarded by the panel to the
selecting official for an interview, complainant was not considered
by the selecting official. Accordingly, the AJ found no nexus between
complainant's prior EEO activity and the selection of the three candidates
for the subject positions.
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 found that
complainant failed to present any evidence that race was a consideration
by the panel members, either by direct or circumstantial evidence.
Moreover, the AJ found that complainant presented no evidence regarding
the diminution of his duties and responsibilities (as described in claim
(2)(d)(3) herein). Accordingly, the AJ found that complainant failed
to prove that race or reprisal discrimination occurred as alleged.
The agency's final order implemented the AJ's decision.
On appeal, complainant contends that the AJ erred when she narrowed
the claims to be considered at the time of the hearing to three
non-selections, rather than viewing complainant's overall claim of
failure to advance his career.
As an initial matter, we note that it has long been common practice for
AJs to conduct pre-hearing matters by telephone, and to take testimony
by telephone where a witness would otherwise be unavailable to testify.
Louthen v. United States Postal Serv., EEOC Appeal No. 01A44521 (May
17, 2006) (citing Mozee and Bailey v. United States Postal Service,
EEOC Appeals Nos. 01A34265 and 01A34266 (January 10, 2005) (prehearing
conducted by telephone); Freeman v. United States Postal Service,
EEOC Appeal No. 01924204 (September 30, 1993) (witness testimony taken
by telephone); Davis v. Department of Transportation, EEOC Appeal
No. 01883565 (January 18, 1989), req. to reopen, den., EEOC Request
No. 05890471 (November 9, 1989) (witness testimony taken by telephone).
In the instant case, the testimony of one witness was taken by telephone
without objection of the parties.<2> The instant hearing was held prior
to the Commission's decision in Louthen. The Commission, applying the
principles set forth in Louthen, finds that the AJ did not abuse her
discretion in allowing, with no objections, the telephone testimony of
one witness (who the agency stated could not leave the state of North
Carolina to attend the hearing in Florida) considering the totality of
the circumstances.
Dismissed claims
The regulation set forth at 29 C.F.R. � 1614.107(a)(8) provides,
in relevant part, that an agency shall dismiss claims alleging
dissatisfaction with the processing of a prior complaint. Dissatisfaction
with the EEO process must be raised within the underlying complaint,
not in a new complaint.
We concur with the agency's dismissal of claim 5(a) and find that
this claim alleges dissatisfaction with the manner in which the agency
processed complainant's prior complaint and that this claim is properly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(8). Furthermore, to the
extent that this claim concerns the instant complaint, we find that
this claim does not state a claim of discrimination independent from
the other claims in the complaint.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that is
pending before or has been decided by the agency or Commission.
We observe that in Glover v. Department of the Navy, EEOC Appeal
No. 01A10754 (February 8, 2001), the Commission considered a claim
identical to claim (5)(b) in the instant complaint. Claim 5(b) is properly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(1). Complainant has not
claimed any difference in the matters at issue.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
We further find that the agency properly dismissed claims (5)(c) - (d) for
untimely EEO Counselor contact. Each of these non-selections occurred
more than 45 days prior to complainant's July 25, 2002 EEO contact.
Accordingly, we find claims (5)(c) - (d) are properly dismissed pursuant
to 29 C.F.R. � 1614.107(a)(2).
Regarding claim (5)(e), we concur with the agency that this claim is
properly processed pursuant to 29 C.F.R. � 1614.504 et seq., and not
as a new complaint. The Commission notes that complainant's claim that
the denial of a detail breached the agreement was adjudicated in Glover
v. Department of the Navy, EEOC Appeal No. 01A32479 (Feb. 25, 2004),
req. for recon. denied, EEOC Request No. 05A40770 (May 26, 2004).
Complainant does not challenge the dismissal of claim (5)(e) on appeal
and we conclude that this claim is properly dismissed pursuant to 29
C.F.R. � 1614.107(a)(1), because a claim of breach of a settlement
agreement does not constitute a claim of discrimination.
AJ Findings
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. Specifically,
we note that the non-selection claims were properly framed by the AJ
and that complainant's challenge to the identification of his claims was
considered by the agency and the AJ. Moreover, we find compelling the
testimonial and documentary that shows the selecting official relied
on specific experience (e.g., with P-3 aircraft) and professional
development (advanced academic degree) in the selection processes rather
than consideration of complainant's race or prior protected activity.
We note that complainant failed to present evidence that any of the
agency's actions were in retaliation for complainant's prior EEO activity
or were motivated by discriminatory animus toward complainant's race.
We discern no basis to disturb the AJ's decision.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, we AFFIRM the agency's final order.
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
May 24, 2006
__________________
Date
1The record shows that three complaints (DON
02-65886-018, DON 03-65886-006 and DON 03-65886-015) were consolidated
for processing by the agency into agency case number DON 03-65886-015.
2�In Louthen, the Commission has promulgated its policy regarding
the taking of telephonic testimony in the future by setting forth
explicit standards and obligations on its Administrative Judges and the
parties. Louthen requires either a finding of exigent circumstances
or a joint and voluntary request by the parties with their informed
consent. When assessing prior instances of telephonic testimony, the
Commission will determine whether an abuse of discretion has occurred
by considering the totality of the circumstances. In particular, the
Commission will consider factors such as whether there were exigent
circumstances, whether a party objected to the taking of telephonic
testimony, whether the credibility of any witnesses testifying
telephonically is at issue, and the importance of the testimony given
telephonically. Further, where telephonic testimony was improperly taken,
the Commission will scrutinize the evidence of record to determine
whether the error was harmless, as is found in this case.� Sotomayor
v. Department of the Army, EEOC Appeal No. 01A43440 (May 17, 2006).