0120072420
08-31-2007
Elkin Parker, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.
Elkin Parker,
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120072420
Hearing Nos. 410-2006-00229X, 410-2006-00230X, 410-2006-00231X
Agency Nos. GIPSA-2005-0051, GIPSA-2005-01091, GIPSA-2005-00203
DECISION
On April 14, 2007, complainant filed an appeal from the agency's March
22, 2007, final order concerning his equal employment opportunity (EEO)
complaint alleging 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., and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final order.
At the time of events giving rise to this complaint, complainant worked
as a Regional Director at the agency's Packers and Stockyard Program
facility in Atlanta, Georgia. Complainant filed multiple formal
complaints alleging that he was discriminated against and subjected
to harassment on the bases of race (African-American), his sex, color
(Black), age (D.O.B. 01/14/48), and in reprisal for prior protected EEO
activity when:
1. his supervisor (S1) changed his performance standards in the ninth
month of the rating period by adding an additional critical element
"Mission Results," and subsequently used that additional critical element
to justify an overall "fully successful" rating in lieu of a "superior"
rating for the entire rating period;
2. S1, on June 23,2005, proposed a reassignment to remove him from his
GS-15, Regional Manager position in Atlanta, Georgia, and demote him to
a GS-13, unspecified position in Indianapolis, Indiana;
3. S1, on June 22, 2005, made accusations against him without allowing
explanations, and instructed him to report to headquarters (Washington,
D.C.) by 10 A.M. next day; On unspecified dates, S1 discussed personnel
matters of complainant before complainant's subordinates; failed to
treat him with dignity and respect afforded white regional managers;
instructed him not to talk to black employees; threatened to take action
against him when he refused to select the Trade Practice Unit Supervisor
that was recommended by a selection panel; demanded that he select a
white female in lieu of a black male for an (acting) Resident Agent
Supervisor position; and, threatened to take action against him because
he failed to terminate an employee; and
4. on November 18, 2005, he was placed on a Performance Improvement
Plan.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. Over complainant's objections, the AJ assigned to
the case granted the agency's November 6, 2006 motion for a decision
without a hearing and issued a decision without a hearing on February
14, 2007. The AJ, in a comprehensive decision, found that complainant
failed to establish that a genuine issue of fact existed and failed
to show that he was discriminated against and harassed as he alleged.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that he was subjected to discrimination
and harassment as alleged.
The record reflects that even considering the facts in the light
most favorable to complainant, he failed to establish that a genuine
issue of material fact existed such that a hearing was warranted.
The agency offered legitimate reasons for each of the alleged incidents
and complainant failed to present any evidence to show that a genuine
issue of fact exists. Moreover, complainant has failed to proffer
sufficient evidence to support an inference that the alleged instances of
discrimination or harassment occurred because of his protected classes.
After a review of the record in its entirety, including consideration of
all statements submitted on appeal, it is the decision of the Commission
to affirm the agency's final order. We find that the AJ appropriately
issued a decision without a hearing and the preponderance of the evidence
in the record does not establish that complainant was discriminated
against or harassed as he alleged.
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
____8-31-07______________
Date
2
0120072420
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120072420