01972140
09-09-1999
Ronald D. Browne Appellant, v. 310-96-5085 Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Ronald D. Browne )
Appellant, )
) Appeal No. 01972140
v. ) Agency No. 95-2233 & 95-2250
) Hearing No. 310-96-5094 &
310-96-5085
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
Agency. )
)
)
DECISION
Ronald Brown (hereinafter, "appellant") filed a timely appeal from a
final agency decision (FAD) concerning his equal employment opportunity
(EEO) complaint of unlawful employment discrimination on the bases of race
(Caucasian), national origin (Scot-Irish, German), color (white), religion
(Christian), sex (male), reprisal (prior EEO activity), age (DOB: 9/19/45)
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. Appellant alleges
he was discriminated against when: (1) he was not certified as eligible
for the position of supervisory police officer TR-083-09 under Vacancy
Announcement 95-0011-CAM; (2) he received unfavorable comments on his
performance appraisal, and (3) he received an official reprimand for
failing to follow orders, rules and regulations. The 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 Lead Police Officer, TR-0083-8, at
the agency's Bureau of Engraving and Printing police unit of the Western
Currency Facility, filed a formal EEO complaint with the agency on March
29, 1995 and on May 2, 1995, alleging that the agency had discriminated
against him as referenced above.
At the conclusion of the investigation, appellant received a copy of
the investigative report(s) and requested a hearing before an EEOC
Administrative Judge (AJ). Following a hearing, the AJ issued a
Recommended Decision (RD) finding no discrimination.
The AJ concluded that appellant failed to establish a prima facie case of
race, religion, national origin, sex, or age discrimination<1> because he
failed to show that similarly situated younger, non-white, non-Christian,
female employees were treated differently with respect to discipline,
or in their applications for job vacancies. The AJ further found that
the appellant failed to show a prima facie case of reprisal because he
failed to show he had engaged in protected EEO activity prior to the
disputed evaluation, his non-selection or his reprimand, or that his
supervisors knew of his purported activity.
The AJ then concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions, namely, that the appellant had
refused to obey his supervisor's (S1) (Caucasian, male, German, Catholic,
DOB 1/5/65, no prior EEO activity) order to dispose of his cup of coffee
while on duty, and that he repeated the offense shortly thereafter.
The agency also demonstrated that the appellant was rated ineligible
for the position of Supervisory Police Officer because he did not meet
the time-in-grade requirements. The appellant argued that he had been
qualified for a previous vacancy for a supervisory police officer in 1994
but the personnel specialist (Caucasian, female, national origin unknown,
religion unknown, 48 years old, EEO activity unknown) stated that the
reason for this was his status under the Veteran's Readjustment Act (VRA)
at the time which waived the time-in-grade requirements. In October 1994,
appellant was converted to a career conditional employee which required
that he meet time-in-grade requirements.
Finally, the AJ found that appellant did not establish that more likely
than not, the agency's articulated reasons were a pretext to mask unlawful
discrimination or retaliation. In reaching this conclusion, the AJ found
that appellant failed to establish any evidence of racial animus in his
supervisors' (S1 and S2) (African American, black, male, 35 years old,
EEO activity unknown) issuance of a reprimand, or the unfavorable comments
contained in appellant's evaluation. Similarly, appellant failed to
establish evidence of racial animus in the conclusion that he did not
meet the eligibility criteria for the Supervisory Police Officer position.
The agency adopted the AJ's recommended decision as its final decision.
Appellant makes no new contentions on appeal, and the agency did not
submit a statement on appeal.
After a careful review of the record, the Commission finds that the AJ
correctly summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We note that appellant could not
establish that his filing of a civil action against an agency contractor
constituted protected EEO activity. Consequently, he failed to prove
that the agency's refusal to qualify him for the position of supervisory
police officer was based on reprisal.
Appellant compared the handling of his application with that of co-worker
1 (Black, female, religion unknown, national origin unknown, DOB 6/7/63,
prior EEO activity) and co-worker 2 (Black, male, religion unknown,
national origin unknown, DOB 9/25/65, no prior EEO activity) who were
certified as qualified. The record reflects however, that both of these
employees had VRA status which waived the time-in-grade requirements.
None of the other employees with whom appellant compares himself are
outside of his protected groups.
We further note that appellant failed to demonstrate that the actions
of the agency in its discipline and evaluation of him were motivated
by discriminatory animus toward appellant's race, color, age or sex.
In addition, the appellant failed to show that the supervisors responsible
for the discipline and evaluation were aware that he had engaged in any
prior EEO activity, i.e. his complaint regarding his non-selection.
The AJ considered evidence offered by appellant that his supervisors
were members of a group called "Shadow Walkers" which he contended was
formed to advance the career interest of African American interests to the
detriment of Caucasians. The AJ did not give weight to this evidence, and
we affirm, because S2 was not a member of the group and S3 (Black, male,
DOB 1/21/49, prior EEO involvement) was a member for one month only.
Aside from this evidence, appellant was unable to persuade us that
his race, color, age or sex was a factor in the employment decisions
at issue.
We discern no basis to disturb the AJ's findings of no discrimination
which were based on 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 agency's
final decision.
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:
9/09/99
DATE Carlton Hadden, Acting Director
Office of Federal Operations1The appellant withdrew
the bases of religion, national origin and sex
during the counseling phase of his complaint on the
issues of his reprimand and unfavorable evaluation.