01a23151
08-19-2003
Jeffery Martin, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.
Jeffery Martin v. Department of the Navy
01A23151
August 19, 2003
.
Jeffery Martin,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A23151
Agency No. 01-62604-001
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
concerning his formal complaint 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. For the following reasons, the Commission
affirms the agency's final decision.
ISSUES PRESENTED
The issues presented herein are whether complainant has proven by
preponderant evidence that he was discriminated against and harassed
on the bases of race (African American), sex (male) and reprisal (prior
EEO activity) when he was not selected for the position of Wood Worker,
WG-4604-08 and denied promotion on two separate occasions when he was not
upgraded to a WG-8 position; and whether the agency properly dismissed
for failure to state a claim complainant's allegation of harassment by
his supervisor concerning a White co-worker who had threatened complainant
with a knife.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Painter Worker, WG-4102-07, at the agency's Naval Construction
Battalion Center in Gulfport, Mississippi facility. Complainant sought
EEO counseling and subsequently filed a formal complaint on February
23, 2001, in which he alleged he was discriminated against regarding
the non-selection and non-promotions mentioned in the issues presented
portion of this decision and harassed by his supervisor regarding the
incident with the White co-worker. The non-selection and promotions
allegations were accepted for investigation, the allegation concerning
harassment by his supervisor relating to the incident with the White
co-worker was dismissed.
At the conclusion of the investigation, complainant was informed of his
right to request a hearing before an EEOC Administrative Judge (AJ) or
alternatively, to receive a final decision by the agency. Complainant
requested a hearing before an AJ. Consequently, complainant's case
was forwarded to the appropriate EEOC District Office and assigned to
an AJ. On February 22, 2002, the AJ remanded the case to the agency
for issuance of a final agency decision after complainant failed to
comply with a Scheduling Order dated October 8, 2001. Specifically,
complainant failed to comply with the AJ's order to submit an itemized
list of damages, produce all evidence on which any claim for compensatory
damages would be based, submit a witness list (along with a summary of
their expected testimony), and notify the AJ if he had any objections
to the issuance of a decision without a hearing. Pursuant to the AJ's
remand, the agency issued a final decision, dated April 24, 2002, in
which it concluded that complainant had not been discriminated against
as alleged. The decision reiterated the agency's dismissal regarding
whether complainant was subjected to harassment by his supervisor
after complainant was threatened with a knife by a White co-worker.
Complainant appealed.
On appeal, complainant contends that he did comply with the AJ's
Scheduling Order. Specifically, he contends that he called the AJ's
office two times. He further contends that he called the agency's
Office of Human Resources (OHR) to obtain information regarding the
order with which he was required to comply but no one could locate a
copy of the order. Complainant does not specify when he contacted the
AJ, nor does he indicate whether he spoke to the AJ or left a message.
Moreover, other than his appeal statement, complainant provided no
evidence that he called the AJ two times. Similarly, complainant does
not indicate when he contacted OHR, nor does he provide proof beyond
his appeal statement that he actually did. Complainant's contentions,
even if true, do not change the fact that he failed to provide the
AJ with information requested in the Scheduling Order, which spelled
out clearly that noncompliance would �be considered an abandonment or
waiver of [complainant's] request for a hearing.� For those reasons,
it is the Commission's view that complainant was not in compliance with
the AJ's order and his case was appropriately remanded to the agency for
issuance of a final decision. See Martin Hayes v. United States Postal
Service, EEOC Request No. 05A20689 (January 13, 2003) (holding that the
AJ's decision to remand a case to the agency for a final decision was
appropriate when complainant failed to comply with AJ orders to provide
a position statement, witness list, and response to the agency's motion
for a decision without a hearing).
ANALYSIS AND FINDINGS
Disparate Treatment
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973); see, Hochstadt v. Worcester Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),
aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to
retaliation cases). First, complainant must 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.
McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination. Id. at 256.
Although the initial inquiry in a discrimination case usually focuses
on whether the complainant has established a prima facie case,
following this order of analysis is unnecessary when the agency has
articulated a legitimate, nondiscriminatory reason for its actions.
See Washington v. Department of the Navy, EEOC Petition No. 03900056
(May 31, 1990). In such cases, the inquiry shifts from whether the
complainant has established a prima facie case to whether s/he has
demonstrated by a preponderance of the evidence that the agency's
reasons for its actions merely were a pretext for discrimination. Id.;
see also United States Postal Service Board of Governors v. Aikens,
460 U.S. 711, 714-717 (1983). Here, we find that the agency has stated
legitimate, nondiscriminatory reasons for its actions. Specifically,
the agency stated that complainant was not selected for the Wood Worker
position because he did not apply for it. The agency further stated
that complainant was twice denied promotions or upgrades to the WG-8
level because his position did not warrant it.
Because the agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory events, complainant now bears the
burden of establishing that the agency's stated reason is merely a
pretext for discrimination. Shapiro v. Social Security Administration,
EEOC Request No. 05960403 (December 6, 1996). Complainant can do this
by showing that the agency was motivated by a discriminatory reason.
Id. (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)).
In attempting to prove pretext, complainant argued that he did not apply
for the Wood Worker position because he did not have access to Resumix,
the agency's automated application system, like White employees and
was told the position was temporary. Complainant has presented no
evidence, other than a mere assertion, that he did not have access to
the agency's automated application system. And though complainant
(as well as others) was initially told by one management official
that the vacancy was for a temporary position (which was true at the
time), complainant failed to disprove the agency's contention that once
the position became permanent, complainant was informed that it was.
To support his allegation that he was twice denied promotion to the WG-8
level on the bases of race, sex, and reprisal, complainant noted that
two White employees were upgraded. The agency explained that those two
employees were upgraded because they were performing work at the WG-8
level, and that complainant was not performing similar duties except
on a temporary and intermittent basis. Complainant failed to present
evidence that the agency's explanation lacked truthfulness. For those
reasons, it is our holding that complainant failed to prove that the
agency's reasons for the non-selection and non-promotions were a pretext
designed to mask discriminatory animus toward his protected groups.
Harassment
Complainant also alleged that he was subjected to harassment when he was
not selected for the position at issue and was denied two promotions.
To establish a claim of harassment, a complainant must show that the
following five elements exist: (1) s/he is a member of a statutorily
protected class; (2)s/he was subjected to harassment in the form of
unwelcome verbal or physical conduct involving the protected class;
(3) the harassment complained of was based on the statutorily protected
class; (4) the harassment resulted in a tangible employment action
and/or had the purpose or effect of unreasonably interfering with the
work environment and/or creating an intimidating, hostile, or offensive
work environment; and (5) there is a basis for imputing liability to
the employer. See Flowers v. Southern Reg'l Physician Serv. Inc.,
247 F.3d 229 (5th Cir. 2001); Fox v. General Motors Corp., 247 F.3d 169
(4th Cir. 2001); Humphrey v. United States Postal Service, EEOC Appeal
No. 01965238 (October 16, 1998). As noted in our disparate treatment
analysis, complainant failed to prove that the actions of which he
complained were based upon his membership in a protected class. Thus,
he failed to establish the existence of the third element. Accordingly,
we find that he failed to establish a claim of harassment.
Failure to State a Claim
Finally, complainant alleged that he was harassed by his supervisor when
he reported a White co-worker to security after the co-worker threatened
him with a knife. This allegation was dismissed by the agency for failure
to state a claim because complainant did not state with specificity the
harassing acts of the supervisor. The agency reasoned that, in light of
the general nature of his harassment allegations, complainant failed to
demonstrate how he suffered a harm with respect to a term, condition,
or privilege of employment. Upon review, we agree with the agency and
therefore affirm the decision to dismiss.
CONCLUSION
After a careful review of the record, including complainant's contentions
on appeal, the agency's response thereto, and arguments and evidence
not specifically addressed in this decision, we affirm the agency's
final decision.
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 19, 2003
__________________
Date