0120122160
09-20-2012
Jimmy Walker, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Jimmy Walker,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120122160
Agency No. ARSTEWART11FEB00919
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's March 22, 2012 final decision concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Supervisory Operations & Readiness Specialist, GS-301-12, at the Agency's Plans, Training, Mobilization and Security Division (PTMS) Division, Winn Army Community Hospital in Ft. Steward, Georgia.
On April 20, 2011, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the bases of race (African-American) and sex (male) when:
1. from September 1, 2010 through January 31, 2011, the Colonel [COL], Hospital Commander, directed courses of action designed to create a basis to replace him as the Chief of the PTMS Division;
2. on January 31, 2011, his supervisor, the Lieutenant Colonel [LTC], issued an Official Written Reprimand (OWR) for "rude and courteous behavior" to him; and
3. on January 31, 2011, he received an annual performance evaluation for the rating period October 1, 2009 to September 30, 2010. In part IV, section "a" of the appraisal, LTC rated him as "Needs Improvement on one or More Objectives," and in part VII, his senior rater, [COL], rated him "Level 4" or "Fair."
After the investigation, Complainant was provided with a copy of the report of the investigation and notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond.
On March 22, 2012, the Agency issued the instant final decision, finding no discrimination. The Agency found that Complainant did not show by a preponderance of the evidence that he was discriminated against on the bases of race and sex. The Agency further concluded that Complainant did not prove, by a preponderance of the evidence, that the Agency's proffered reasons for its actions were a pretext for discrimination.
Regarding claim 1, COL stated that during the relevant time, he was Complainant's second-line supervisor. COL stated that he scheduled the September 1, 2010 meeting with Complainant and LTC after a named female employee (F1) came to COL with concerns about how she was being treated by Complainant, and based on COL's own interaction with Complainant during weekly staff meetings. Specifically, COL stated that he and LTC addressed the following areas with Complainant during the meeting: F1's concerns about Complainant not showing respect to F1 and other female colleagues, and his failure to communicate effectively with his subordinates; the failure of Complainant's office to take action with regard to recommendations by the Environment of Care Committee; a named Sergeant's concerns about how the non-commissioned officers (NCOs) in PTMS were not being used appropriately; and Agency management's concerns that Complainant presented data in the morning reports without analysis.
COL stated that when F1 shared her concerns about Complainant, he stated that he "was concerned. I felt that it was legitimate and felt that it should be explored, and our [mechanism] for doing that was with the EEO sensing." COL stated that he had the EEO Office conduct a "sensing session" with Complainant's subordinates and provide him a report. COL stated that based on the findings of the sensing session, there was "a poor command climate in PTMS. I concluded that there - there was at least a perception that [Complainant] doesn't like females. And I would point out that there . . . were females and a male in this sensing session, and there was at least a perception that [Complainant] did not respect female supervisors or treat them in a respectful manner and that he was demeaning towards them. And - - and that the employees that participated in the EEO sensing session were fearful of retaliation if [Complainant] were to find out that they had expressed their concerns."
Further, COL stated that Complainant's subordinates expressed concerns about his leadership and lack of communication "that it involved females and males, and . . .so based on that, based on my concerns about the command climate I felt it should be further investigated with a 15-6."1 The record reflects that the AR 15-6 investigation concluded that Complainant had demonstrated a lack of leadership and failed to communicate adequately with his subordinates which created an adverse command climate. As a result, Complainant was given a letter of reprimand, a Level 4 performance appraisal, and was reassigned to non-supervisory duties.
With respect to Complainant's allegation that COL's actions were designed to remove him from his supervisory position, COL denied it. COL stated that "our supervisors are responsible for the command climate and the level of trust in the organization...I based my actions on the 15-6, and [Complainant's] employees expressed their lack of trust in [Complainant] as their supervisor." COL further stated that he did not influence the outcome from the sensing session or the AR 15-6 investigation, and that Complainant's reassignment to a non-supervisory position was appropriate. Moreover, COL stated that he did not discriminate against Complainant based on race and sex.
During his fact-finding testimony, LTC stated that during the September 1, 2010 meeting, he and COL shared their concerns about Complainant's performance. Specifically, LTC stated that he and COL "talked about three areas of performance. There were four things discussed, but three had to do with performance. I'm not going to go over those three areas, but the fourth issue had to do with a concern about gender discrimination." LTC further stated that based on F1's concerns about Complainant, COL had the EEO office to "interview folks in PTMS to either rule out or confirm some of the allegations." LTC stated the findings of the sensing session revealed that there were issues related to Complainant's treatment of his subordinates and "rudeness of - - of the interaction between [Complainant] and employees."
Further, LTC stated that while COL is the approving authority for all 15-6 investigations, COL "had delegated me [LTC] as the appointed authority for all 15-6s." The record reflects that LTC appointed an investigating officer to conduct an AR-16 investigation into allegations of poor information dissemination, poor command climate, hostile work environment and possible gender discrimination within Complainant's division. The record reflects that while the investigator determined that there was no sex discrimination or hostile work environment, he nonetheless found that Complainant's actions had created a poor command climate that negatively affected the ability of his subordinates to do the mission and there was a communication breakdown within his division primarily caused by him.
The Mobilization Planner (MP) stated that during the time Complainant served as the Chief of the PTMS Division, he was Complainant's direct supervisor. MP stated that Complainant was not good at communicating with his subordinates. Specifically, MP stated that Complainant's communication "wasn't that good to us. We never had that communication piece." Further, MP stated that he participating in both the sensing sessions and the AR 15-6 investigation, and that no one influenced what was said in either of those proceedings. MP stated that during the relevant time, he did not feel that male and female were treated differently in Complainant's division. MP stated, however, there was friction between Complainant and a named female employee (F2), and friction between Complainant and the female employees in the Security area.
Regarding claim 2, the record reflects that following the AR 15-6 investigation COL concluded that Complainant should receive an OWR. LTC was the deciding official to issue Complainant an OWR for rude and courteous behavior in the workplace. The record reflects that based on the sensing sessions and AR 15-investigation, Complainant's conduct was determined to be egregious and disruptive to the work environment; and his treatment of subordinates had created an environment of mistrust and disrespect.
Further, LTC stated that prior to issuing the OWR, he had discussions with AO concerning the situation involving Complainant. Specifically, LTC stated that " . . . the whole [possible course of] actions on this case were reviewed, all go from doing nothing at all to issuing a letter of reprimand to suspension to all those things were on the table for discussion, but . . . I decided at the end of issue the letter of reprimand instead." Furthermore, LTC stated that Complainant's race and sex were not factors in his determination to issue him an OWR.
COL stated that during the relevant time, he contacted a named Administrative Officer (AO) concerning Complainant's OWR. Specifically, COL stated that "[AO] was aware of the reprimand, and I subsequently made a decision to reduce the length of the reprimand from 24 months to 12 months."
During her fact-finding testimony, AO stated that she staffed the action through the Civilian Personnel Advisory Center (CPAC) and the labor attorney. AO further stated that she did not note anything she felt was unusual about the OWR although it was a "little harsh."
Regarding claim 3, LTC stated that he based his determination on Complainant's failure to meet his supervisory standard by rating him as "Needs Improvement on one or More Objectives" in part IV, section a of the appraisal. Specifically, LTC stated "the one objective that [Complainant] were not able to meet according to my assessment was the supervisory objective which is the most important objective in this job."
AO stated that the subject rating was appropriate according to the regulation because Complainant did not meet his supervisory standard, which is one of his critical elements. AO further stated that even if all aspects of the performance were exceptional, the failure in that one critical element justified the "Needs Improvement" rating. Specifically, AO stated that if Complainant had received prior positive performance, it would have not changed his rating "because of the outliers of - - of the whole situation, I would say probably not because of the sensing sessions, and the one element that [Complainant] was found to have failed in was supervisory duties." AO stated that while she does not recall whether CPAC had any concerns about the Needs Improvement performance evaluation, Complainant probably should have received some counseling prior to being given the Needs Improvement rating.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency erred finding no discrimination. For instance, Complainant argues that there was a conflict of interest during the fact-finding conference when LTC acted as the Agency's appointment Agency Official "with authority to resolve the issue and was a Primary Management Witness who made the decision/took the action that gave rise to my complaint." Complainant further argues that he was not provided "with the qualification for [EEO Officer] to conduct a sensing session, as far as I know the employees may have been steered to provide only negative comments about the climate of the organization from the beginning."
Further, Complainant argues that during the pre-conference discussion, the investigator stated that he "would look at this in the context of disparate treatment, yet he concluded that any testimony by witnesses on how management treated me to actions that took place on 1 September 2010 would not prove any relevance to this case." Complainant argues that the Labor Attorney claimed that since he did not receive counseling, his performance should have been rated as successful. Finally, Complainant argues that Agency's "overarching motive for what was done has not proven that no discrimination was committed and management has not explained the rational for taking these actions."
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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. See 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. See 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. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
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. See U.S. Postal Service Board 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).
In the instant case, we find that Agency management articulated legitimate, nondiscriminatory reasons for its actions, as detailed above. Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Complainant, on appeal, argued that the EEO Investigator conducted an inadequate investigation by not looking into his allegations thoroughly and obtaining relevant documents. Complainant also argued that there was a conflict of interest when LTC acted as the Agency's appointed Agency Official during the fact-finding conference because he was the one that took the action which is the subject of the instant complaint. We note Complainant's extensive arguments on appeal, which include but are not limited to purported deficiencies in the investigation, the Agency's purported determination relying upon evidence not of record; and the Agency's purported failure to review the evidence in the light most favorable to Complainant. We have reviewed Complainant's appellate arguments but nonetheless determine that the Agency properly conducted an adequate investigation of the instant complaint. We further determine that Complainant has provided no persuasive arguments indicating any improprieties in the Agency's findings.
Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
September 20, 2012
__________________
Date
1 An "AR 15-6 investigation" refers to an administrative fact-finding investigation initiated pursuant to Army Regulation 15-6.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120122160
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122160
9
0120122160