0120082455
08-05-2008
Ronald Grigsby, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Ronald Grigsby,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120082455
Agency No. ARTACOM05JUN09277
Hearing No. 471-2006-00015X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's April 7, 2008 final action 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., and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
Complainant alleged that the agency discriminated against him on the
bases of race (African-American), color (Black), and in reprisal for
prior EEO activity1 when:
a. on or around June 2, 2005, he was not selected for the position of Lead
Police Officer, GS-0083-07, under Vacancy Announcement No. NCBV05632880;
b. on or around May 30, 2005, he was allegedly denied the opportunity to
compete for the position of Lead Police Officer under Vacancy Announcement
No. NCBV05632880 because the agency identified the position as GS-0083-07,
rather than as GS-0083-06 (Target GS-0083-07);
c. on or around May 30, 2005, the position of Lead Police Officer under
Vacancy Announcement No. NCBV05632880 was identified as being located
at Selfridge Air National Guard Base when it was located at the Detroit
Arsenal;
d. in or around October and November of 2005, he was denied the
opportunity to compete for the position of Lead Police Officer,
GS-0083-07, under Vacancy Announcement No. NCBV05959002; and
e. on or around November 21, 2005, he was not selected for the
position of Lead Police Officer, GS-0083-07, under Vacancy Announcement
No. NCBV05959002.
Complainant timely requested a hearing before an EEOC Administrative Judge
(AJ). The agency, in turn, moved for a decision without a hearing.
The AJ, however, denied the agency's motion, finding that there were
material facts in dispute that required a hearing. Following a hearing
held on February 5 and 6, 2008, the AJ issued her decision, finding no
discrimination. Specifically, the AJ concluded that complainant had not
met his burden to prove that the agency's reasons for its actions were
a pretext to discriminate against him. The agency subsequently adopted
the AJ's decision in its final action.
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. On the
other hand, the AJ's credibility determinations based on the demeanor
or tone of voice of the witnesses 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. (Nov. 9, 1999).
Having reviewed the record, we find that the evidence substantially
supports the AJ's decision. Even if we assume that complainant
established a prima facie case of race, color, and reprisal
discrimination, we agree with the AJ that the agency provided legally
sufficient legitimate reasons for its actions and that complainant failed
to prove that these reasons were pretext. As such, it is the decision
of the Equal Employment Opportunity Commission to AFFIRM the agency's
final action because the AJ's ultimate finding, that unlawful employment
discrimination was not proven by a preponderance of the evidence, is
supported by the record.
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
August 5, 2008
Date
1 The record reflects that, prior to the administrative hearing in this
case, complainant withdrew the bases of sex, disability and age.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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