01972173
06-02-1999
Reginald B. Teamer, Appellant, v. Aida Alvarez, Administrator, Small Business Admin. Agency.
Reginald B. Teamer, ) Appeal No. 01972173
Appellant, ) Agency Nos. 07-90-225, 11-90-261<1>,
) 04-91-274, 08-91-275,
v. ) 09-92-337
) Hearing Nos. 100-94-7980X, 120-95-6043X,
Aida Alvarez, ) 120-95-6044X, 120-95-6045X,
Administrator, ) 120-95-6046X, 120-95-6047X,<2>
Small Business Admin. ) 100-95-7479X, 100-95-7480X,
Agency. ) 100-95-7481X, 100-95-7482X,
) 100-95-7483X, 100-95-7484X
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning his equal employment opportunity (EEO) complaints of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq. The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is AFFIRMED.
Believing he was a victim of discrimination based on a series of
events occurring over approximately three years, appellant filed EEO
complaints between March of 1990, and January of 1993, which are set
forth as follows:
(1) Complaint of March 8, 1990:
Whether the agency discriminated against appellant on the bases of race
(Black) and reprisal (prior EEO activity) when he was detailed to another
location (NAVAIR) as a Procurement Analyst not to exceed sixty days;
his access card was canceled; and he was reassigned to the Regional
Coordination Specialist position in the Office of Veterans Affairs with
no promotion potential;
(2) Complaint of March 22, 1990:
Whether the agency discriminated against appellant on the bases of race
and reprisal when there was a delay in processing a travel voucher,
which cost him a deduction of $528.56 from his salary;
(3) Complaints (three) of July 31, 1990:
Whether the agency discriminated against appellant on the bases of
race and reprisal when he did not receive an �outstanding� on his 1989
performance evaluation (MAC); the agency allegedly tampered with his
personal effects, resulting in the loss of some personal items; and
there was a scrutiny of his travel voucher which resulted in the denial
of payment for parking for $23.00;
(4) Complaint of November 6, 1990:<3>
Whether the agency discriminated against appellant on the bases of race
and reprisal when he was not given the opportunity to compete for the
GM-14 Supervisory Contract Specialist position; and again he did not
receive an �outstanding� on his 1989 MAC;
(5) Complaint of April 8, 1991:
Whether the agency discriminated against appellant on the bases of race
and reprisal when he was issued a letter of reprimand regarding his
disciplining an insubordinate employee;
(6) Complaints (three) of April 22, 1991:
Whether the agency discriminated against appellant on the bases of race
and reprisal when the lock was removed from his office door on November
3, 1989; his second level supervisor (S2) burst into his office and
yelled at him concerning a key; and there was interference with
his training opportunity and disciplinary responsibilities;
(7) Complaints (three) of April 30, 1991:
Whether the agency discriminated against appellant on the bases of
race and reprisal when his supervisory responsibilities were removed;
he was rated minimally qualified for the District Directors Candidate
Program and Personnel refused to explain or change his rating; and the
Personnel Office failed to classify applicable positions and refused to
answer procedural questions on personnel actions;
(8) Complaint of July 29, 1991:
Whether the agency discriminated against appellant on the bases of
reprisal when he was chastised by the now former Director, Office of
Procurement and Grants Management, regarding the disposition of a Form 2;
(9) Complaint of November 25, 1991:
Whether the agency discriminated against appellant on the bases of
race and reprisal when he was not selected for a GM- 1101-14 Supervisory
Contracts & Grants Specialist position, pursuant to Vacancy Announcement
No. 91-58;
(10) Complaints (four) of September 2, 1992:
Whether the agency discriminated against appellant on the bases of race
(Black), sex (male) and reprisal (prior EEO activity) when it failed
to process his EEO complaints in a timely and professional manner;
he was not selected for a GM-1102-14 Procurement Analyst position
pursuant to Vacancy Announcement No. 91-85; he was not selected for the
positions of GM-11-1101-14 Chief, Program Certification, pursuant to
Vacancy Announcement No. 92-29 (two positions) or a GM-1101-14 Chief,
Program Eligibility position under Vacancy Announcement No. 92-30;
he was not reassigned back to the 1102 series, despite his requests,
while thirteen others received billets; and previous announcements
for which he applied were canceled;
(11) Complaint of October 23, 1992:
Whether the agency discriminated against appellant on the bases of race,
sex, and reprisal when he was not selected for the Support Services
Supervisor position pursuant to Vacancy Announcement No. 92-65; and
(12) Complaint of January 22, 1993:
Whether the agency discriminated against appellant on the bases of
reprisal when he was denied training for the Executive Potential Program;
and he was regarded as a troublemaker, unstable and unreliable.<4>
The record reveals that appellant commenced employment with the
agency's Washington District Office as a GM-1102-13 Supervisory
Contracting Officer. After filing a series of EEO complaints, and
after the agency completed separate investigations into the various
allegations set forth herein, appellant requested a hearing before an
Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ).
All of appellant's complaints were consolidated for a single hearing,
and following the hearing, the AJ issued a Recommended Decision (RD)
finding no discrimination.
Concerning appellant's first three complaints, and in employing the
analysis set forth in United States Postal Service Board of Governors
v. Aikens, 460 U.S. 711 (1983), the AJ concluded that the agency
articulated legitimate, nondiscriminatory reasons for each of the actions
alleged to have been harassing and motivated by race and reprisal, and
that appellant provided no evidence from which discrimination could be
inferred. The AJ noted that appellant's allegations, without supporting
testimony or documentation demonstrating racial or retaliatory animus,
were insufficient to infer such animus when the agency reassigned him,
canceled his access card, and took other actions, which are set forth
in the above-referenced complaints.
Concerning appellant's fourth Complaint, the AJ found that appellant's
contention that he was not permitted to compete for the Supervisory
Contract Specialist position was belied by the evidence. The AJ noted
that the Recommending Official (RO) considered appellant's application,
but recommended to S2, who was the selecting official, another candidate
whom the RO had interviewed through a job fair sponsored by the Office
of Personnel Management. The RO stated he did not interview appellant
because he knew his selection would be unlikely due to his reassignment.
The RO also stated that he was under no duty to interview appellant or
any other candidate listed on the promotion certificate because he knew
he was selecting an individual who was not listed on the certificate.
While noting that the RO had been asked to find a position to reassign
appellant into, and recognizing that S2 was also named as a responsible
management official in the above-referenced complaints, the AJ concluded
that appellant presented no probative evidence that the RO did not
recommend appellant to S2 for impermissible reasons.
Concerning appellant's fifth Complaint, the AJ concluded that appellant
presented no evidence that the decision to issue the reprimand was
motivated by racial or retaliatory animus. In reaching this conclusion,
the AJ found that appellant's testimony concerning the severity of the
incident prompting his decision to reprimand the subordinate employee
was contradicted by his affidavit to the investigator. The AJ also
noted that this event prompted appellant's initial EEO contact, and as
he had not engaged in prior EEO activity, appellant did not establish
the initial criteria to establish a prima facie case of reprisal.
Concerning appellant's sixth Complaint that S2 burst into his office and
yelled at him, and that agency officials interfered with his training
opportunities and disciplinary responsibilities, the AJ first noted the
different version of events by appellant and S2 as to who yelled at whom,
and for what reason. The AJ next noted that appellant alleged that
the agency did not reimburse him for plane fare to attend a training
program, and that his immediate supervisor threatened to discipline
him for failing to obtain the requisite authority to travel by plane to
attend the training program. The AJ then concluded that as there was no
evidence or testimony by appellant that he was ever reprimanded by his
immediate supervisor, appellant was therefore not harmed with respect
to the terms, conditions and privileges of his employment.
Concerning appellant's seventh Complaint, the AJ concluded, after
reviewing the testimony and statements of the relevant management
officials, that appellant offered no evidence, other than his bare
assertions, that he was treated differently based on his race, or in
retaliation for engaging in EEO activity.
Concerning appellant's ninth Complaint, which involved his non-selection
to a Supervisory Grants and Contracts Specialist position, the AJ found
that appellant's contention that he was more qualified than the selectee
was insufficient to rebut the agency's stated reasons for selecting the
selectee, namely, that the selectee had more appropriate all around
experience in government purchasing and contracting in both the pre-
and post-award phases. The AJ also noted that contrary to appellant's
testimony, the selecting official stated that those alleged by appellant
to have made the selection had no involvement in the selection process.
Appellant's tenth Complaint included allegations of discrimination in
other non-selections, as well as retaliation when the agency failed
to process his EEO complaints in a timely and professional manner.
Concerning the latter, the AJ noted the agency admission that in addition
to inadequate budget and staffing of its EEO Office at the relevant time,
appellant's initial complaints were delayed because the EEO Counselor
handling his complaints did not complete the Counselor's Report, even
after the Acting Chief of EEO had so requested, because the Counselor had
passed away. On this basis, the Chief of the agency EEO Office denied
that retaliation motivated any inaction by the Office, and stated that the
Office processed appellant's complaints without a completed Counselor's
Report, and accepted as timely all his allegations. Concerning the
former, the AJ concluded, again, that appellant had presented no evidence
of discriminatory animus to rebut the agency's reasons for not selecting
him for the positions at issue in this complaint.
Concerning appellant's eleventh complaint, the AJ found that appellant
presented no evidence other than �mere assertions and his belief
that his race, sex and his prior EEO activity played a role in his
non-selection.� The AJ concluded that appellant therefore presented no
evidence establishing that the agency's articulated reasons for selecting
the selectee for the Support Services Supervisor position were a pretext
for unlawful discrimination.
The agency's FAD adopted the AJ's RD. On appeal, appellant made
numerous contentions, including arguments that the AJ improperly
excluded testimony sought by his representative, and failed to draw an
adverse inference when the agency failed to locate the notes from the EEO
Counselor who had passed away prior to completing the Counselor's Report.
Appellant also alleged that had the EEO Counselor's notes been produced,
the notes would have revealed that appellant had sought EEO contact
prior to the time the AJ found that he had so initiated contact, and
that this would demonstrate that reprisal must therefore have motivated
the agency's actions. Finally, appellant alleges that inconsistencies
in statements by S2 and the Deputy Director of the Washington District
Office also demonstrate that the agency was motivated by discriminatory
animus toward his race or his EEO activity. The agency responds to each
contention, and requests that we affirm its FAD.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We agree with the AJ that appellant
failed to present evidence that any of the agency's actions were
in retaliation for appellant's prior EEO activity or, where alleged,
were motivated by discriminatory animus toward appellant's race or sex.
In reaching this conclusion, we first note that an Administrative Judge
has broad discretion in the conduct of a hearing, including such matters
as the drawing of adverse inferences. See 29 C.F.R. � 1614.109(c), Malley
v. Department of the Navy, EEOC Appeal No. 01951503 (May 22, 1997).
Even though the AJ noted in her RD that the agency's attempts to locate
the EEO Counselor's notes were futile, and the AJ made a specific
credibility finding against appellant concerning the date appellant
contacted an EEO counselor (See RD at page 20, fn. 8), this credibility
finding was not instrumental where the AJ assumed, pursuant to United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711 (1983),
that appellant had established a prima facie case of retaliation.
In her RD, the AJ repeatedly concluded that appellant failed to present
evidence, other than his mere assertions, that the agency's articulated
reasons were a pretext for discriminatory or retaliatory animus.<5>
It is apparent that the AJ found credible the testimony of various
management officials, in that, notwithstanding the problems appellant's
office was experiencing and the increasing backlog of contracts, there
were a number of complaints about his managerial style and capabilities
which, irrespective of other problems, suggested to agency management
officials that appellant's skills and contracting experience would be
better utilized in a non-supervisory position. Their concerns proved
true when the agency official detailed into appellant's position cleared
much of the backlog within a matter of weeks.
We discern no basis to disturb the AJ's findings of no discrimination,
which were based on a detailed assessment of the record and the
credibility of the witnesses. See Gathers v. United States Postal
Service, EEOC Request No. 05890894 (November 9, 1989); Wrenn v. Gould,
808 F.2d 493, 499 (6th Cir. 1987); Anderson v. Bessemer City, 470
U.S. 564, 575 (1985). Therefore, after a careful review of the record,
including appellant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we AFFIRM the FAD.
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 2, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1 The Administrative
Judge's Recommended Decision inadvertently
identified this as agency number 22-90-261.
2 The Administrative Judge's Recommended Decision inadvertently identified
this as EEOC number 120-96-6047X.
3 The Administrative Judge's Recommended Decision inadvertently identified
the date of the formal complaint as November 30, 1990.
4 The Commission notes, as did the Administrative Judge, that Complaint
Numbers 8 and 12 were withdrawn at the hearing. We also note that the
facts and legal analyses of all the complaints are adequately set forth
in the Administrative Judge's Recommended Decision, and will not be
repeated herein except for purposes of clarification.
5 In addition, and to the extent appellant's allegations may also be
considered allegations of retaliatory harassment, we find that either
individually or as a whole, appellant's allegations do not rise to the
level of discriminatory conduct so severe or pervasive so as to create
a hostile work environment. See Harris v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993); EEOC Notice No. 915.002 (March 8, 1994), Enforcement
Guidance on Harris v. Forklift Systems, Inc. at 3, 6. We also note that,
while the AJ did not make a specific conclusion of law concerning that
portion of Complaint (6) concerning appellant's confrontation with S2,
we find, after a review of the record, that consistent with the AJ's other
conclusions, appellant did not present evidence other than his testimony,
which was contradicted by S2, that the confrontation was more likely than
not motivated by appellant's prior EEO activity or his race. Finally,
that portion of Complaint (6) concerning appellant's allegation that his
supervisor did not support his request to discipline a subordinate for
refusing to attend a training program, and that he was not reimbursed
for his plane ticket, we conclude that to the extent he was aggrieved,
we find that appellant failed to demonstrate that more likely than not,
the agency's actions were motivated by discriminatory animus.