01A12506
08-13-2002
Howard W. Brown, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Howard W. Brown v. Department of the Navy
01A12506
August 13, 2002
.
Howard W. Brown,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A12506
Agency Nos. 98-65886-008, 99-65886-009, 99-65886-018, 99-65886-026,
00-65886-011
DECISION
Complainant timely initiated this appeal from the final agency decision
(FAD) concerning his above-captioned five complaints of 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 appeal is accepted pursuant to 29 C.F.R. � 1614.405. At all times
relevant to the agency actions at issue, complainant was employed as a
Production Controller, GS-1152-09, at the agency's Naval Aviation Depot in
Jacksonville, Florida. Complainant alleged in his complaint that he had
been subjected to unlawful discrimination in violation of Title VII when:
(1) on September 9, 1997, he was not selected for a Support Equipment
Scheduler, GS-1101-11, position;
(2) on August 3, 1998, he was denied a promotional opportunity for a
Ground Support Equipment Scheduler, GS-1101-11, position, due to the
reassignment of another employee;
(3) on August 19, 1998, his supervisor issued him a �Level 4� annual
performance appraisal for the 1997-1998 rating period;
(4) on or around December 28, 1998, three employees were reassigned into
Hub Scheduler, GS-1101-11, positions prior to the announcement of the Hub
Scheduler positions in Merit Promotion Vacancy Announcement No. 98-0628;
(5) on or around December 28, 1998, an employee was selected for
promotion to a Hub Scheduler, GS-1101-11, position without competing
under competitive merit promotion procedures;
(6) on March 9, 1999, the Supervisory Production Support Specialist did
not select him for the position of Hub Scheduler, GS-1101-11, position
under Merit Promotion Vacancy Announcement No. 98-0628;
(7) on January 13, 2000, and February 10, 2000, he was not selected
for the position of Hub Scheduler, GS-1101-11, under Merit Promotion
Vacancy Announcement No. 99-MZ53-PH-2000; and
(8) on November 13, 1999, he was denied overtime duty.
In his five complaints of discrimination which set forth these eight
individual claims, complainant alleges that the agency was unlawfully
motivated in each of these actions by his race and in retaliation for
his prior EEO activity. Complainant further alleges that the agency
also discriminated against him on the basis of his color in regard to the
action complained of in claim (1), and on the basis of his sex in regard
to the actions complained of in claims (2), (3), (6), and (7). At the
conclusion of the agency's investigation into his complaints, complainant
requested that the agency issue a FAD.<1> The agency complied with this
request, and issued a FAD which addressed all five of his complaints,
finding that complainant had failed to prove by a preponderance of the
evidence that he had been discriminated against as alleged.
In its FAD, the agency found that complainant had established a prima
facie case of reprisal for all eight of his claims, but did not make
a finding on whether he had established a prima facie case of race,
color, or sex discrimination. The agency then proceeded to examine
whether complainant had produced sufficient evidence to establish that
the agency's articulated legitimate, nondiscriminatory reasons for the
complained-of actions were merely pretext for unlawful discrimination.
The agency found that it had presented legitimate, nondiscriminatory
reasons for the actions at issue, and that complainant's unsupported
assertions of discriminatory treatment were, without more, insufficient
to rebut the agency's articulated reasons and prove that he had suffered
unlawful discrimination as claimed. This appeal followed.
After a thorough examination of the record on appeal, we find that
the agency correctly concluded that complainant has failed to prove
his claims. The record indicates that the agency presented testimony
from each of the officials responsible for the complained-of agency
actions, and that complainant has failed to present sufficient evidence
to establish that the challenged testimony lacks credibility or that the
agency's articulated reasons are mere pretext for unlawful discrimination.
Nor has complainant presented other evidence, beyond that in support of
his prima facie cases, which establishes that the complained-of agency
actions were the result of an unlawful discriminatory or retaliatory
motive. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
143 (2000) (noting that, in claims of disparate treatment applying the
framework for the allocation of burdens and order of presentation of
proof first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), �[a]lthough intermediate evidentiary burdens shift back and forth
under this framework, the ultimate burden of persuading the trier of fact
that the [agency] intentionally discriminated against the [complainant]
remains at all times with the [complainant]�).
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, it is the decision of the
Commission to AFFIRM the agency's conclusion that complainant has failed
to prove, by a preponderance of the evidence, that he was subjected to
unlawful discrimination and retaliation as alleged in his complaints.
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
August 13, 2002
Date
1 Complainant originally requested a hearing before an EEOC
Administrative Judge in complaint no. 98-65886-008, in which he alleged
claim (1) above. However, he subsequently withdrew that hearing request
and instead asked to receive a final decision from the agency without
a hearing.