01974486
06-10-1999
Leslie F. Farley, Jr., Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Leslie F. Farley, Jr. v. Department of the Army
01974486
June 10, 1999
Leslie F. Farley, Jr., )
Appellant, )
) Appeal No. 01974486
v. ) Agency No. 9607G370
) Hearing No. 240-96-5025X
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision ("FAD")
concerning his equal employment opportunity ("EEO") complaint of unlawful
employment discrimination on the bases of race (African-American), color
(black), sex (male), and reprisal (prior EEO activity), in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq. Appellant alleges he was discriminated against when: (1) he was
not selected for the position of Support Services Specialist, GS-342-07 in
November 1994; (2) he was forced to work in hostile environment created by
management's constant monitoring of his whereabouts during the workday;
and (3) he was not afforded the same training opportunities as similarly
situated female employees. This appeal is accepted in accordance with
EEOC Order No. 960.001. For the following reasons, the agency's decision
is AFFIRMED.
The record reveals that appellant, a GS-5 Military Personnel Clerk
at the agency's Indianapolis Recruiting Battalion, filed a formal EEO
complaint with the agency on February 15, 1995, alleging discrimination
as referenced above. At the conclusion of the investigation, appellant
requested a hearing before an Equal Employment Opportunity Commission
("Commission") Administrative Judge ("AJ"). Following a hearing, the
AJ issued a Recommended Decision ("RD") finding no discrimination.
Citing United States Postal Service Board of Governors v. Aikens, 460
U.S. 711, 713-14(1983), the AJ concluded that since the agency had
established legitimate, nondiscriminatory reasons for its conduct,
she could dispense with the prima facie inquiry and proceed to the
ultimate stage of the analysis, i.e., whether the complainant has
proven by preponderant evidence that the agency's explanations were
a pretext for discrimination. As to the nonselection issue, the AJ
concluded that the agency articulated legitimate, nondiscriminatory
reasons for its actions, namely, that the selecting official stated
that he viewed the selectee as the best qualified applicant because:
(1) her written application, unlike appellant's, demonstrated that she
paid close attention to detail; and (2) she had recent experience in the
position and could begin working immediately. The AJ found that appellant
failed to carry his ultimate burden of proving that more likely than not,
the agency's articulated reasons for his nonselection were a pretext to
mask unlawful discrimination or retaliation.
Regarding management's monitoring of appellant's whereabouts, the AJ
concluded that the agency articulated legitimate, nondiscriminatory
reasons for its actions, namely, that appellant was misusing official
government time by going out in the morning to eat breakfast and
constantly being away from his work station. The AJ found that
appellant failed to show that the proffered reasons were pretextual,
since management similarly monitored other employees outside appellant's
protected classes.
Last, the AJ found that appellant presented unpersuasive evidence
concerning the training opportunity issue. Specifically, the AJ found
that appellant had failed to show that: (1) he took all the necessary
actions in requesting training; (2) the requested courses were job
related; (3) money was available for the training; (4) the agency denied
the requested training courses; and (5) similarly situated individuals
outside his protected classes were afforded the training courses in
question.
The agency's FAD adopted the AJ's RD. On appeal, appellant contends that
the AJ did not address his overall complaint of retaliation. The agency
responds by restating the position it took in its FAD and requests that
we affirm its FAD.
After a careful review of the record in its entirety, including the
statements submitted on appeal, the Commission finds that the AJ's RD
sets forth the relevant facts and properly analyzes the appropriate
regulations, policies and laws. We note that, while appellant may
disagree with the AJ's analysis, her decision does address appellant's
allegation of retaliation. We agree with the AJ's determinations and
find that appellant failed to present sufficient credible evidence
demonstrating discrimination or retaliation. Therefore, the Commission
discerns no basis upon which to overturn the AJ's finding of no
discrimination in this matter. In this regard, the AJ made specific
credibility findings which are entitled to deference due to the AJ's
first-hand knowledge, through personal observation, of the demeanor and
conduct of the witnesses. See Esquer v. United States Postal Serv.,
EEOC Request No. 05960096 (September 6, 1996); Willis v. Department of
the Treasury, EEOC Request No. 05900589 (July 26, 1990). Accordingly,
it is the decision of this Commission to AFFIRM the agency's final
decision which adopted the AJ's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
June 10, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations