01A41463
06-10-2004
Peter Nagurny, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Peter Nagurny v. Department of Justice
01A41463
June 10, 2004
.
Peter Nagurny,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No.01A41463
Agency Nos. M-99-0065; M-01-0002
Hearing Nos. 150-A2-8187X; 150-A2-8188X
DECISION
Complainant timely initiated an appeal from the agency's final order
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. For the following reasons,
the Commission affirms the agency's final order.
The record reveals that complainant, the Chief Deputy at the U.S. Marshall
Service District of Kansas facility, filed a formal EEO complaint on
September 2, 1999 and an amendment to the complaint on October 10, 2000.
He alleged that the agency had discriminated against him on the basis
of his race (White) and sex (male) when (1) he was reassigned pending
an investigation by the Internal Affairs office into a sexual affair;
(2) he was ordered to relinquish his keys, and directed not to talk
to other employees; (3) allegations surrounding the sexual affair were
referred to Internal Affairs for an investigation; (4) complainant was
removed from a Supervisory Training class; and (5) complainant was not
considered for the position of Assistant Director, Prisoner Services
under Vacancy Announcement 98-SES-51.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ dismissed complainant's hearing
request as untimely filed and remanded the matter to the agency for a
final agency decision.<1>
The agency concluded that the decisions made by the Deputy Director
(S) and the Director, U.S. Marshall Service (S2) surrounding the
investigation of allegations of sexual harassment on the part of
complainant were not discriminatory. More specifically, the agency
found it was undisputed that complainant and a subordinate had a sexual
affair and that the subordinate reported the affair to complainant's
supervisor, S. The subordinate employee wrote a letter, stating that
she tried to end the affair but felt threatened by complainant and that
complainant might cause her and another female employee in whom she had
confided, physical harm. As a result, S recommended that complainant
be reassigned to another office, that complainant relinquish his keys to
the office, and that he not have contact with other potential witnesses.
S2 stated that complainant was reassigned because of the high level of
his position and because such high level managers were held to a higher
standard of conduct. S2 further determined that the matter should be
referred to the Office of Inspector General which in turn referred the
matter to Internal Affairs for investigation.
The agency concluded that with respect to the Supervisory Training,
complainant requested that his training request be rescinded and
that another employee be assigned to attend in his place. The agency
concluded that complainant was not singled out for different treatment
in these instances because of his gender or his race, but because of
his position in management and because the subordinate employee's
claims were substantiated by another employee who reported similar
safety concerns. In addition, such complaints are usually referred to
the Inspector General's office which then determines whether they should
be investigated by Internal Affairs.
Additionally, the agency concluded that complainant was not discriminated
against when his application was not referred for consideration for the
position of Assistant Director for Prisoner Transportation Services,
but because he was not rated as highly as the other applicants for
the position.
ANALYSIS AND FINDINGS
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). Complainant
must initially establish a prima facie case by demonstrating that he or
she 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). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. 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). To ultimately
prevail, complainant must prove, by a preponderance of the evidence,
that the agency's explanation is a pretext. 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); Pavelka v. Department of the
Navy, EEOC Request No. 05950351 (December 14, 1995).
Applying these principles, the Commission concludes that complainant
failed to establish that any of the agency's reasons for taking the
actions in question were a pretext to hide discrimination. There was
no showing that the agency's decision to separate complainant from the
subordinate employee and a contract employee who had corroborated the
harassment claim, was based on his protected class and not because the
agency was carrying out its duties under its anti-harassment policy.
In addition, complainant failed to demonstrate that his qualifications
were demonstrably superior to those applicants referred for consideration
for the position of Assistant Director, Prisoner Transportation Services.
Consequently, complainant failed to establish by a preponderance of the
evidence that he was subjected to discrimination based on his gender
and his race.
Based on the foregoing, we affirm the agency's final order.
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
June 10, 2004
__________________
Date
1The AJ also dismissed the amended complaint
for untimely counselor contact, but because the matter was consolidated
with the original complaint, she remanded the matter to the agency for
a final decision. Complainant did not appeal the AJ's decision regarding
his hearing request.