Elkin Parker, Complainant,v.Mike Johanns, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionAug 31, 2007
0120072420 (E.E.O.C. Aug. 31, 2007)

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

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0120072420