0120070712
09-03-2008
Mark R. Malouse, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Mark R. Malouse,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120070712
Hearing No. 130-2005-00254X
Agency No. 043937510481
DECISION
On November 14, 2006, complainant filed an appeal from the agency's
October 10, 2006 final order concerning his equal employment opportunity
(EEO) complaint alleging 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 deemed timely and is accepted
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the
Commission affirms the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Pharmacist at the agency's Branch Medical Clinic in Gulfport,
Mississippi. On July 8, 2004, complainant filed an EEO complaint alleging
that he was discriminated against in reprisal for prior protected EEO
activity when:
1. management denied him civilian physical training (PT) time,
temporary additional duty (TAD) assignments, and annual leave until he
completed the pharmacy Standard Operating Procedure (SOP);
2. management denied him permission to close the pharmacy for lunch
breaks, civilian PT time, and special events;
3. on June 8, 2004, management advised him that an incoming military
pharmacy technician would not be assigned to the pharmacy full-time;
4. on October 7, 2004, complainant's supervisor (S1) rescinded her
approval of complainant's 30-minute annual leave request and directed
him to stay after his duty hours to issue a prescription;
5. from October 13-15, 2004, S1 denied complainant's requests for
30 minutes of annual leave on three separate occasions;
6. during the week of November 1, 2004, S1 denied complainant's
request for annual leave; and
7. on October 29, 2004, S1 issued complainant a Letter of Reprimand
(LOR) for refusing to follow instructions.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing and the AJ held a hearing on June 14 and July 26,
2006. The AJ subsequently issued a decision finding no discrimination.
The AJ found that assuming, arguendo, complainant established a prima
facie case of reprisal discrimination, the agency nonetheless articulated
legitimate, nondiscriminatory reasons for its actions. Specifically,
the AJ found that complainant was denied PT time and TAD because of his
failure to complete the SOP, despite being given ample time to do so,
and that once complainant completed the SOP, he was once again granted
PT time and TAD assignments. The AJ further found that complainant was
denied annual leave during major mobilizations and demobilizations,
which was the policy of complainant's facility. The AJ found that
agency policy also required the pharmacy to remain open during lunch,
and could not close until the last patient was served. The AJ found
that the military pharmacy technician was assigned to duties outside
the pharmacy prior to complainant's protected EEO activity. Finally,
the AJ found the issuance of the LOR was in line with agency policies
and procedures. The AJ concluded that complainant failed to show that
any of the agency's articulated reasons for its actions were a pretext
for unlawful retaliation.
The agency's final order adopted the AJ's finding that complainant failed
to prove that he was subjected to discrimination as alleged. On appeal,
complainant reiterates his contention that the agency's actions were
motivated by reprisal for his prior protected EEO activity.
ANALYSIS AND FINDINGS
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.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
He must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997);
Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December
14, 1995).
Here, we concur with the AJ's finding that the agency articulated
legitimate, nondiscriminatory reasons for its actions. We also concur
with the AJ's finding that complainant failed to show that any of these
articulated reasons were a pretext for unlawful reprisal. We find that
complainant has proffered no evidence that the agency's actions were
motivated by retaliatory animus. Accordingly, we discern no basis to
disturb the AJ's decision, and the agency's final order is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
September 3, 2008
__________________
Date
2
0120070712
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120070712