01a55038_r
12-15-2005
Mark H. Jones, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Mark H. Jones v. Department of the Army
01A55038
December 15, 2005
.
Mark H. Jones,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A55038
Agency No. ARAPG-02SEP0002
Hearing No. 120-2003-00386X
DECISION
Complainant timely initiated an appeal from the agency's final action
concerning his equal employment opportunity (EEO) 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.
During the relevant time, complainant was employed as a Boiler Mechanic,
WG-5309-10, at the agency's Directorate of Installation Operations
(DIO), Heating, Ventilation, and Air Conditioning (HVAC) Section,
Aberbeen Proving Grounds in Aberdeen, Maryland.
On May 23, 2002, complainant initiated EEO Counselor contact and
subsequently filed a formal complaint on September 2, 2002. Therein,
complainant claimed that he was discriminated against on the basis of race
(African-American).
On June 8, 2003, the agency received a memorandum �to whom it may
concern.� Therein, complainant noted that the agency had not completed
a report of investigation, and requested that an Administrative Judge
(AJ) be assigned for a hearing.
The record reflects that on March 4, 2004, the agency issued a final
decision. Therein, the agency determined that the instant complaint
was comprised of five claims, identified in the following fashion:
(a) from 1994 to 1997, complainant was denied training;
(b) he was denied performance/cash awards;
(c) he was denied a temporary position;
(d) between July 24, 2001, and March 20, 2002, he was denied promotion;
and
(e) from March 1996 to February 2002, complainant received low
performance appraisals.
The agency dismissed the instant complaint on the grounds of untimely
EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2); and
on alternative grounds for failure to state a claim pursuant to 29
C.F.R. � 1614.107(a)(1). The agency stated that it sent complainant
a letter dated September 10, 2002, requesting additional information
regarding the claims, including the dates that the alleged discriminatory
events occurred. The agency further stated that in his response to its
request for additional information/clarification, complainant gave no
specific alleged discriminatory dates. The agency further stated that
complainant provided no information regarding specific positions for
which he had applied, with the exception of a Boiler Plant Equipment
Mechanic position, WG-5309-11.
Despite the agency's issuance of the March 4, 2004 dismissal of the
complaint, as outlined above, an Administrative Judge (AJ) issued an
Acknowledgement and Order on March 12, 2004. Therein, the AJ acknowledged
receipt of complainant's request for a hearing.
On March 22, 2004, the AJ issued an Order in which he determined that
he would treat the agency's March 4, 2004 �submission by the agency�
as an Agency's Motion for Summary Judgment �due to untimeliness.� In
his Order, the AJ directed complainant to submit his response to the
agency's motion within fifteen days upon receipt of the Order. The record
reflects that complainant submitted his response to the agency's motion.
Therein, complainant argued that his EEO contact was timely raised,
and that he provided the EEO Counselor sufficient information concerning
his claims.
Following a hearing, the AJ issued a decision finding no discrimination.
The AJ determined that complainant's claims were identified as follows:
(1) on February 24, 2002, he was not selected for the position of Air
Conditioning Equipment Mechanic Leader, WL-5306, under Job Announcement
AG02059371, with an opening date of January 18, 2002, and a closing date
of January 25, 2002; and
(2) on several occasions between 1994 and 2002, he was denied
training.<1>
In his decision, the AJ concluded that complainant failed to establish a
prima facie case of race discrimination regarding the matter raised in
claim (1). The AJ further found that assuming, arguendo, complainant
established a prima facie case of race discrimination, the agency
articulated legitimate, nondiscriminatory reasons for complainant's
non-selection which complainant failed to show were a pretext for
discrimination. With respect to complainant's argument that he was more
qualified than the selectee, the AJ found that complainant provided no
evidence to support this contention.
With respect to complainant's denial of training claims (claim (2)),
the AJ found that complainant failed to establish a prima facie case
of race discrimination. The AJ further found that assuming, arguendo,
complainant established a prima facie case of race discrimination, the
agency articulated legitimate, nondiscriminatory reasons for its actions
which complainant failed to show were a pretext for discrimination.
Regarding claim (1), the record reflects that ten candidates, including
complainant, were identified as being qualified for the position of
Air Condition Equipment Mechanic Leader, WL-5306, and were referred
to the Selecting Official (SO) for consideration. The SO stated that
he requested that the former Chief of the Minor Branch Repair (Chief)
set up a panel and interview the candidates for the subject position.
The SO stated that the reason he asked the Chief to set up a panel because
"I thought it was best to prevent the perception of favoritism." The SO
indicated that the only advice he gave the Chief "was to try to get area
experts involved as part of the panel." The SO stated that following the
interviews, the panel gave him "a cover sheet with the ratings on it,
the best qualified, second, third, fourth, fifth." The SO stated that
"in every case I select the best qualified individual, the number one
candidate that the selection panel picked." Furthermore, the SO stated
that complainant's race was not a factor in his determination to select
the selectee for the subject position.
With respect to complainant's argument that the agency engaged in the
preselection process by providing the selectee educational and career
opportunities, the SO stated that the selectee did not receive any
management or supervisory training for the subject position. The SO
stated that the selectee's detail to the subject position prior to the
vacancy announcement did not have an effect on the selection process.
Specifically, the SO stated that the selection matrix was conducted
�as if it had nothing to do with past experience in this facility."
The SO stated that the matrix was based on a series of questions that
were unrelated to the particular facility where the selectee worked in
his detail. Further, the SO stated that the fact the selectee served in
a 120-day status as an Air Conditioning Mechanic Leader prior to the year
the subject position was advertised had no effect on his determination
to select the most qualified candidate.
The record further reflects that the Chief stated that he was asked
by SO to set up a panel to review the application packages of the
candidates and interview them; and to develop a matrix that would rank
the candidates as most qualified to least qualified. The Chief stated
that he then asked the HVAC Chief (P1) and the first-line foreman (P2)
to be on the panel because they were "subject matter experts;" and to
work with him developing the interview questions and matrix. The Chief
stated that he developed ten interview questions. The Chief stated that
the matrix contained the following categories: performance appraisals;
education; awards; supervisory experience; license certification; and
technical knowledge. The Chief stated that during the interviews, there
was "anywhere from five to eight people, depending on their schedules, for
these different panel." The Chief stated that he asked the candidates
questions; and that after the interviews, he met with the panel to
compare notes. The Chief stated that the purpose of meeting with the
panel and comparing notes was "for like a check and balance issue."
The record reflects that the selectee received the highest score of
358.5 while complainant was ranked eighth with a total score of 273.3.
The Chief stated that under the Performance Appraisal of the matrix,
he assigned a point value. Specifically, the Chief stated that "there
was a one, two and a three."<2> The Chief stated that for number one,
there was a 50-point value; for number two, there was a 37.5 point
value; and for number three, there was a 12.5 point value. The Chief
stated that the selectee received a score of 150 points because he had
"a number one for all three years." The Chief stated that complainant
received a score of 137.5 because he had "two number one appraisals
and one number two appraisals out of the three." The Chief stated
that under education category, he assigned a 25-point value. The Chief
stated that all candidates, including complainant, received 25 points.
The Chief stated that under awards category, he assigned a 25-point value;
and that all candidates, including complainant, received 25 points. The
Chief stated that under supervisory experience, he assigned a 25-point
value. The Chief stated that only the selectee and one other candidate
received points under this category. The Chief stated that under the
license certification category, he assigned a 25-point value; and that
all candidates, including complainant, received 25 points. The Chief
stated that under technical knowledge category, he stated that technical
knowledge was based on the ten interview questions. The Chief stated that
he applied 10 points per question. The Chief stated that the selectee
received a score of 90 points while complainant received a median score
of 50 points. The Chief stated that he submitted a list of the most
qualified candidates to the least qualified candidates to the SO.
Regarding claim (2), the record reflects that the SO stated that he
denied several of complainant's training requests for two reasons:
they were not job-related and due to funding. Specifically, the SO
stated that complainant "wanted to take management courses or courses
that weren't job related, so on numerous occasions we tried to explain
to him that it had to be job-related." The SO stated that because the
agency had "minimal training dollars available," management officials
only encouraged job-related training. The SO stated that several of
complainant's training requests required travel. The SO stated "we are
and always have been required to do everything possible to prevent travel
in training and per diem associated with travel." The SO stated that the
agency would approve mandatory training courses that are job-related.
Specifically, the SO stated that the agency would approve mandatory
training courses "that require a license or a certificate of any sort,
if the job is advertised that the Boiler Plant Equipment Mechanic
must have a stationary engineering license, they would pay for that."
The SO stated that in the last ten to twelve years, complainant attended
approximately ten to fifteen training courses that were job-related.
Furthermore, the SO stated that he did not deny complainant's training
requests based on his race.
The record further reflects that the Human Resources Specialist
(Specialist) stated that the training policy for Garrison provides for
training that are mandatory as being job-related. The Specialist further
stated that there are a variety of positions within the DIO operations
that require mandatory training "to keep them current on what the trends
are in the field." The Specialist stated that the agency policy also
discusses "training that is not mandatory training, training that would
need to be competitive." The Specialist stated that this type of training
"becomes like a discretionary training opportunity." The Specialist
stated that management's requirements are "to take a look at why is
the training needed and how does it benefit the government and is it
mission-related and is there funding available for that training."
The Specialist stated that complainant stopped by her office several
times to discuss training opportunities. The Specialist further stated
that after complainant expressed concerns that he was being denied
training opportunities, they "talked about the kind of training that he
was requesting." The Specialist stated she advised complainant to talk
to management about the types of training he needed; "to also look at the
availability and the cost and the location of the training courses that
he was requesting." The Specialist stated that several of complainant's
training requests that were denied were out-of-state at "tremendous
expense." The Specialist stated that she also encouraged complainant to
look into "locally-funded kinds of courses." and complainant talked about
the agency policies and procedures are, how to go through that process,
so that he would understand what garrison policy is, what management
may or may not approve, and how that process works, what is required
for the job verus what is more or less discretionary."
On June 20, 2005, the agency issued a final action implementing the AJ's
decision finding no discrimination.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
A claim of disparate treatment is examined under the three-part 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 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. 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).
The Commission determines that the AJ's findings of fact are supported
by substantial evidence in the record and that the AJ's decision properly
summarized the relevant facts and referenced the appropriate regulations,
policies, and laws. We note that complainant failed to present evidence
that the agency's actions were motivated by discriminatory animus toward
complainant's race. We discern no basis to disturb the AJ's decision.
After a careful review of the record, we AFFIRM the agency's final action,
implementing the AJ's finding of no discrimination.
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
December 15, 2005
__________________
Date
1The AJ did not address the remaining issues that were the subject of
the agency's March 4, 2004 dismissal, i.e., denial of performance/cash
awards; denied temporary promotion; and low performance appraisals.
Complainant has not addressed those matters on appeal. The Commission
therefore will not further address these claims.
2The record reveals that number one is considered an �exceptional�
rating while number two is considered �highly successful.� The record
further reveals that number three is considered �successful.�