01A23702_r
03-18-2003
Billy D. Bloomer, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency) Agency.
Billy D. Bloomer v. Department of Defense
01A23702
March 18, 2003
.
Billy D. Bloomer,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Logistics Agency)
Agency.
Appeal No. 01A23702
Agency No. JQ-01-023
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated May 21, 2002, regarding the dismissal of two
consolidated complaints alleging 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.
The record reveals that during the relevant time, complainant was
employed as a Motor Vehicle Operator, WG-5703-06, at the agency's Defense
Distribution (DDC), Material Movement Branch, Oklahoma City, Oklahoma,
Tinker AGB, Oklahoma.
Complainant sought EEO counseling and subsequently filed two formal
complaints on January 22, 2001, and January 31, 2001, respectively.
Pursuant to 29 C.F.R. � 1614.606, the agency consolidated the
two complaints for joint processing under Agency No. JQ-01-023.
Complainant claimed that he was discriminated against on the bases of race
(African-American) and in reprisal for prior protected activity when:
(1) on January 2, 2001, he was not selected for a temporary Motor
Vehicle Operator, WG-5703-08, position, advertised under a �help wanted�
memorandum dated September 27, 2000;
(2) on January 2, 2001, he was denied an opportunity to compete for
a Motor Vehicle Operator, WL-5703-08, position because his supervisor
selected a white male for the position without advertising it;
(3) on December 13, 2000, he was suspended for three days for allegedly
threatening to run over his supervisor; and
(4) on December 22, 2000, he was the only Motor Vehicle Operator who
did not receive an �on the spot� cash award.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its final decision, the agency determined that complainant
established a prima facie case of race and reprisal discrimination
concerning his nonselection for the temporary position of Motor Vehicle
Operator, WG-5703-08 (Claim (1)). The agency determined that it had
articulated a legitimate reason for its nonselection of complainant.
Specifically, the agency presented evidence supporting complainant's
immediate supervisor's determination that the selectee was more productive
than complainant. According to complainant's immediate supervisor, he
decided in favor of the selectee primarily because he knew the selectee
to be �more productive� while complainant had in the past had a problem
with productivity. The supervisor noted, for instance, that complainant
talked excessively with co-workers prior to commencing an assignment; and
that he had been repeatedly instructed not to disrupt other co-workers
while they were working. The supervisor further noted that complainant
does �a lot of loafing.� The agency found that complainant had failed
to establish that the agency's articulated reasons for his nonselection
were pretexts for unlawful race and reprisal discrimination. The agency
identified complainant's pretext argument as that the selectee had
been preselected for the position, and that the selection process was
manipulated in order to facilitate this preselection despite the fact
that complainant was more qualified for the position than selectee.
Regarding claim (2), the agency determined that complainant established
a prima facie case of race discrimination concerning the denial of an
opportunity to compete for the permanent position of Motor Vehicle
Operator, WL-5703-08. The agency further determined that it was
unnecessary to determine whether complainant has establish a prima facie
case of reprisal discrimination because it has articulated a legitimate,
non-discriminatory reasons for its employment actions. Specifically, the
agency presented evidence supporting a determination that as a result of
the agency's priority placement program, an employee was given priority
consideration for the Motor Vehicle Operator position, which he accepted.
Regarding claim (3), the agency determined that complainant failed
to establish a prima facie case of race discrimination concerning his
three-day suspension for allegedly threatening to run over his supervisor.
The agency determined that complainant failed to show how he was treated
differently from similarly situated individuals of different protected
classes under similar circumstances. The agency further determined that
complainant established a prima facie case of reprisal discrimination
concerning his three-day suspension. However, the agency presented
evidence supporting a determination that the proposal to suspend
complainant for five days was mitigated down to a three-day suspension,
involving those charges that were fully supported by evidence: (1)
failure to follow a direct instruction of his supervisor; (2) use of
offensive language; and (3) threatening his supervisor.
Regarding claim (4), the agency concluded that since management has
articulated legitimate, nondiscriminatory reasons for its employment
actions, it was unnecessary to determine whether complainant has
established a prima facie case of discrimination. Specifically,
the agency presented evidence supporting a determination that other
employees were similarly not granted �on the spot� cash awards, not only
complainant. Further, the agency found that complainant was not awarded a
cash award because he was one of the least productive employees. Finally,
the agency found that complainant failed to present any evidence which
demonstrated that the agency's articulated reasons for its actions were
pretexts for discrimination.
Complainant raised no new contentions on appeal.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case 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).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
With respect to claim (1), the Commission finds that the agency
articulated legitimate, non-discriminatory reasons for its employment
actions. Specifically, the agency presented evidence supporting a
determination that the selectee was more productive than complainant.
The record in this case contains two affidavits from complainant's
second level supervisor and immediate supervisor, who recommended
the selectee for the subject position. The Supervisors provided
several non-discriminatory reasons for complainant's nonselection.
Complainant's immediate supervisor stated he made the decision to
select the selectee because he was more productive for the position than
complainant. The Supervisors stated that complainant was not selected
due to his lack of productivity. Complainant has not demonstrated that
the agency's articulated reasons for the nonselection were a pretext
for discrimination.
Regarding claim (2), the Commission finds that the agency articulated
a legitimate, non-discriminatory reason for its employment actions.
Specifically, the agency presented evidence supporting a determination
that it was the Human Resource Office's decision to offer the Motor
Vehicle Operator position to an employee because he had priority through
the Priority Placement Program (PPP). Complainant has not demonstrated
that the agency's articulated reasons for the nonselection were a pretext
for discrimination.
Regarding claim (3), the Commission finds that the agency articulated
a legitimate, non-discriminatory reason for its employment actions.
The record in the case contains the affidavit of complainant's immediate
Supervisor. Therein, the Supervisor stated that he was contacted by
two other supervisors to keep his employees, including complainant,
away from their area due to work disruptions. The Supervisor stated
that complainant was instructed to stay away from a particular area;
however, complainant defied his instructions by engaging other employees
in conversations in the particular area. The record reveals that
the proposal to suspend complainant for five days was mitigated to a
three-day suspension, in which he was charged with failure to follow
his supervisor's instructions. The record also contains an affidavit
from the deciding official. Therein, the deciding official stated that
he was aware of complainant's race and prior EEO activity. However,
the deciding official stated that complainant's three-day suspension
was based on his failure to follow his supervisor's instructions.
The deciding official further stated that complainant has been cautioned
about engaging other employees in conversations that overall make them
less productive. Further, the deciding official stated that he hoped
the three-day suspension would cause complainant to see that he was �at
least partially if not fully responsible for what happened and correct
his approach to work responsibilities in the future.� Complainant has
not demonstrated that the agency's articulated reasons for its actions
were a pretext for discrimination.
With respect to claim (4), the Commission finds that the agency
articulated a legitimate, non-discriminatory reason for its employment
actions. The agency first presented evidence supporting a determination
that several employees of complainant's protected classes, as well
as members outside of complainant's protected classes, did not
receive �on the spot� cash awards. In his affidavit, complainant's
immediate supervisor stated that complainant did not receive �on the
spot� cash award because he was one of the least productive employees.
Complainant has not demonstrated that the agency's articulated reasons
for its actions were a pretext for discrimination.
Accordingly, 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
March 18, 2003
__________________
Date