01a50360
11-08-2005
Jerry E. Stuckey, Complainant, v. Michael L. Dominguez, Acting Secretary, Department of the Air Force, Agency.
Jerry E. Stuckey v. Department of the Air Force
01A50360
November 8, 2005
.
Jerry E. Stuckey,
Complainant,
v.
Michael L. Dominguez,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A50360
Agency No. 9R1M03021
DECISION
The complainant timely initiated an appeal from a final agency decision
(FAD) concerning his 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. and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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.
At the time of the events at issue, complainant was employed in a
supervisory position as a Transportation Officer, GS-13, at the agency's
Robins Air Force Base in Georgia. In his position, complainant was
working as a civilian manager in the Logistics Readiness Squadron.
Evidence of record indicates that in the summer of 2002, there was
an agency-wide reorganization occurring to implement a New Combat
Wing Organization. At Robins Air Force Base, implementation of this
reorganization required the merger of Logistics Planning, Supply and
Transportation. This reorganization was going to impact on complainant's
current position, as well as the positions of many other employees in
the organization.
As part of the reorganization, a new senior Squadron Logistics Manager
position was being created, and complainant communicated his interest in
the position to management. The position was originally classified at
the GS-12 level, which was based on a standardized agency classification
system according to management officials. However, management was
attempting to get the position reclassified to the GS-13 level. In the
summer of 2002, three supervisory employees, including complainant, were
considered for reassignment to the new position by the new Commander of
the Logistics Readiness Squadron (�Selecting Official�), who was also
Complainant's direct supervisor. The Selecting Official stated that she
considered agency records on the three candidates and did no interviews.
In September 2002, a candidate other than complainant (�selectee�) was
chosen for the position. The Selecting Official, by sworn affidavit,
stated that she chose the selectee because she judged him to be the
best qualified for the position because she needed someone with an
�extensive� background in supply. She said that the selectee had 24
years of experience in supply, 17 of those years in supervision and 14
years at the GS-13 level. Complainant, on the other hand, according
to the Selecting Official, had 6 years of experience in supply at the
GS-11 level. Complainant's supervisory and GS-13 experience was in
logistics planning, which the Selecting Official stated was her own area
of expertise, and she said she was looking for someone outside that area
to �round out my staff.� The record, however, indicates that despite
the selection made, management never received approval to fill the new
GS-13 position, so the reassignment of the selectee was never finalized.
On December 11, 2002, Complainant filed an EEO complaint over the decision
not to reassign him to the position in question, claiming he was the best
qualified candidate and his nonselection was due to discrimination based
on his physical disabilities (heart disease and diabetes). The Selecting
Official, who started working in the organization in June 2002 shortly
before the selection decision, denied any knowledge of complainant's
health conditions until he filed his EEO complaint. There is no evidence
of record that complainant ever informed management of his health
problems and apparently had no work limitations as a result of them.
Complainant apparently believed that management should have been aware
of his health conditions because he attended a health and wellness class
related to diabetes at work, and the Selecting Official had approved leave
for medical appointments. The Selecting Official stated that Complainant
did request sick leave for doctor's appointments or because he was ill,
but he never elaborated to her on the nature of his medical condition.
In April 2003, Complainant amended his EEO complaint to add an allegation
of unlawful retaliation by the Selecting Official when, on April 1,
2003, he received a proposed letter of reprimand from her. The proposed
reprimand contained two separate charges:
(1) Providing Inaccurate Information. The proposed letter of
reprimand indicated that Complainant provided the Selecting Official
with inaccurate information concerning the availability of a military
subordinate to work due to child care problems. The record contains an
email message from Complainant to the Selecting Official stating that the
subordinate could not work certain shifts. The Selecting Official stated
that at a later meeting Complainant conceded that the subordinate actually
never told him she could not work.<1> The Selecting Official said she was
concerned about the inaccuracy of Complainant's representation because
the subordinate employee, as active duty military, could be subject to
disciplinary action for refusing to work when ordered.
(2) Disrespectful Comments. The proposed letter of reprimand indicated
that in an email to the Selecting Official dated February 19, 2003,
the Complainant made disrespectful comments. Specifically, the email,
which is in the record, was written to explain why certain deadlines
had been missed, and contained the following statements:
�In my opinion, both these incidences should have been relatively minor
yet you didn't miss the opportunity to blow them out of proportion
and express your dissatisfaction toward me, If your purpose was to
embarrass, humiliate, or upset me you were successful. I can't see how
you accomplished much toward getting the Air Force mission done.
...yet again you didn't miss an opportunity to turn a molehill into a
mountain where I am concerned. Are you trying to force me to retire?
Your action could easily be viewed as harassment. �
The proposed letter of reprimand continued that as a supervisor,
Complainant was in a position of trust and responsibility and was held
to a higher standard of conduct.
On April 18, 2003, Complainant had a appointment with the Selecting
Official to discuss his rebuttal to the proposed reprimand. Complainant
died before the meeting occurred and the proposed disciplinary action
was dropped.<2>
The Selecting Official admitted that she was aware of Complainant's EEO
complaint over his nonselection at the time she issued the proposed
reprimand, but stated that it had no impact on her decision to issue
the reprimand. The record contains an affidavit from the Human Resources
(�HR�) Specialist consulted by the Selecting Official before she issued
the proposed action. The HR Specialist stated that she did not know
Complainant or have any knowledge of his physical disabilities or EEO
activity. She said that she had recommended that Complainant be given
a three-day suspension because he was a manager, who should be held to
a higher standard. However, the Selecting Official said she chose a
reprimand because this was a �first time offense for the Complainant and
he had a solid work record therefore, suspension was not an appropriate
action.�
The agency accepted the amendment to Complainant's EEO complaint,
and after some delay due to Complainant's death and questions about
how to process his complaint, the agency authorized an investigation
of the allegations commencing on May 29, 2003. On February 5, 2004,
the agency issued its Report of Investigation to Complainant's estate
with a transmittal letter allowing thirty days to request a hearing
before an.EEOC administrative judge or a final decision by the agency
on the record. When no request for a hearing was received, the agency
issued a final decision, dated August 31, 2004, concluding that the
evidence of record did not support a finding of unlawful discrimination
or retaliation. It is from this decision that Complainant's estate
now appeals.
ANALYSIS AND FINDINGS
A claim of disparate treatment based on indirect evidence is examined
under the three-part analysis first enunciated in McDonnell Douglas
Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail,
she 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. 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. 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. St. Mary's Honor Center v. Hicks,
509 U.S. 502 (1993).
The complainant can establish a prima facie case of reprisal
discrimination by presenting facts that, if unexplained, reasonably give
rise to an inference of discrimination. Shapiro v. Social Security
Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically,
a complainant may establish a prima facie case of reprisal by showing
that: (1) he engaged in a protected activity; (2) the agency was aware
of the protected activity; (3) subsequently, he was subjected to adverse
treatment by the agency; and (4) a nexus exists between the protected
activity and the adverse treatment. Whitmire v. Department of the Air
Force, EEOC Appeal No. 01A00340 (September 25, 2000).
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. U.S. Postal
Service Bd. 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).
As an initial matter, for purposes of this decision, we assume without
finding that the complainant is an individual with a disability.
See 29 C.F.R. � 1630.2(g)(1). Further, we find that complainant failed
to show that the agency's reasons for its actions were a pretext
for discrimination or reprisal. Complainant did not show that his
qualifications for the promotional position under consideration were
superior to that of the selectee. The selectee had much more relevant
experience. Further, with respect to the proposed letter of reprimand,
complainant did not deny giving his supervisor inaccurate information.
The agency's HR Specialist initially proposed a harsher penalty, and
it was the Selecting Official who determined that a letter of reprimand
was appropriate rather than a three day suspension as was proposed. The
agency's decision 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
November 8, 2005
__________________
Date
1 The record also contains a statement from
a witness to this meeting who corroborates that Complainant admitted
to the Selecting Official that the subordinate had not actually told
him she could not work, but he had formed this opinion based on his
own perceptions of her situation. On appeal, Complainant's widow also
submitted a document which she purports was her husband's draft rebuttal
statement to the proposed reprimand. In that document, Complainant
admits he was mistaken about the subordinate military employee's child
care issues and work availability.
2 Continued processing of Complainant's amended EEO complaint, including
this appeal, was pursued by Complainant's widow.