01a40454
03-16-2005
Terence Warren, Complainant, v. Condoleezza Rice, Secretary, Department of State, Agency.
Terence Warren v. Department of State
01A40454
March 16, 2005
.
Terence Warren,
Complainant,
v.
Condoleezza Rice,
Secretary,
Department of State,
Agency.
Appeal No. 01A40454
Agency No. 02-55
DECISION
Complainant initiated an appeal from a final decision concerning his
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. and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons,
the Commission AFFIRMS the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Electrical Engineer in the agency's Office of Overseas Building
Operations. Complainant sought EEO counseling and subsequently filed a
formal complaint on September 8, 2002, alleging that he was discriminated
against on the bases of race (Caucasian), national origin (British), sex
(male), religion (Jewish), age (05/11/1949), and in reprisal for prior
EEO activity when:
(1) Management denied complainant a $9,000.00 performance award;
Complainant was told by the Building Design and Engineering (BDE)
Division Director that he will never be promoted and the BDE Division
Director's supervisor instructed him to terminate complainant.
Complainant has been denied promotion to a GS-15 level position and
career growth as result of his having to move out of the BDE/Electrical
Engineering Branch (EEB) Division to escape a hostile work environment;
and
Because complainant was a witness in another EEO complaint, he was
continuously harassed, denied training, and was not allowed to accomplish
his work as a Program Manager.
In its final decision dated September 30, 2003, the agency concluded that
complainant failed to establish a prima facie case of discrimination on
any basis with respect to claim (1) for the reason that no performance
award was given to any employee for the Abu Dhabi project as complainant
alleged. The agency found no evidence to support complainant's claim
that the proposed award was actually received by other employees, nor
by the employee identified by complainant in his complaint.
With respect claim (2), the agency found that complainant did not
specify a date on which he alleged his supervisor (S1) remarked that
complainant would never be promoted and S1's supervisor (S2) instructed S1
to terminate complainant. The agency determined that these incidents,
if in fact they occurred at all, must have occurred prior to the time S1
retired in August 2001. The agency found that complainant's December
27, 2001 EEO contact was therefore untimely, being outside the 45-day
time limit for initiating the EEO process. Further, the agency found
that complainant was not aggrieved by the agency actions described in
claim (2), since complainant was not terminated and did not apply for
any promotion for which his application was later denied. The agency
therefore dismissed claim (2) pursuant to 29 C.F.R. � 1614.107(a)(2)
for untimely EEO contact and pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim.
Regarding claim (3), again, the agency determined that complainant did
not apply for any GS-15 level positions after he was assigned out of
the BDE/EEB Division and therefore was not aggrieved as alleged in claim
(3). Rather, the agency found that the only GS-15 vacancy identified by
complainant, and for which he applied, was posted in March 1999, preceding
by over a year, complainant's reassignment to the Abu Dhabi project in
September 2001. Accordingly, the agency found that complainant did not
suffer any adverse action as alleged in claim (3) on the grounds that
no openings existed during the relevant time person at the GS-15 level
to which he could have been promoted. The agency found therefore that
complainant did not establish a prima facie case of discrimination on
any basis with respect to claim (3).
In claim (4), the agency found that while complainant established that
he participated in the EEO process, complainant failed to identify
any specific training opportunities that he was denied as a result of
unlawful reprisal. Moreover, the agency found that nothing in the record
indicated that complainant was prevented from accomplishing his duties as
alleged. Rather, the agency found the evidence showed that complainant's
performance continued to be rated at the outstanding level. Accordingly,
the agency found nothing in the record to support complainant's claim that
he had suffered an adverse injury and that therefore complainant did not
establish a prima facie case of reprisal discrimination in connection
with his work as a Program Manager as alleged in claim (4). Lastly,
the agency determined that the incidents of harassment, as described by
complainant, failed to rise to the level of severity or pervasiveness
necessary to state a claim of discrimination based on reprisal for his
previous participation in the EEO process. Accordingly, the agency
found no discrimination occurred as alleged in claim (4). The agency
ultimately found no discrimination on all issues in the complaint.
The Commission concurs with the agency's determination that complainant
failed to establish a prima facie case of race, age, religion<1>, or
sex discrimination. Specifically, we find that complainant failed
to identify any similarly situated employees, not in complainant's
classes, who were treated any better than complainant was treated.
We find nothing in the record to indicate that any employee received a
$9,000.00 performance award for the Abu Dhabi project, that complainant
was denied. We concur with the agency that nothing in the record shows
that complainant applied unsuccessfully for any GS-15 level positions
after March 1999, nor that any vacancies for GS-15 level positions
were advertised and filled during the relevant time. Additionally,
we find nothing in the record to establish the necessary nexus between
complainant's prior EEO activity (namely, appearing as a witness in
another employee's EEO case involving complainant's supervisor) and any
of the events described in claims (2), (3) and (4).
The Commission further finds that complainant failed to present evidence
that more likely than not, the agency's articulated reasons for its
actions were a pretext for discrimination. Complainant has not shown that
any of the actions in the complaint were motivated by discrimination.
Because of our disposition, we do not address whether any of the claims
were also properly dismissed on procedural grounds.
The agency's decision finding no discrimination is AFFIRMED.
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
March 16, 2005
__________________
Date
1We acknowledge that complainant claims
discrimination on the basis of religion because he told a supervisor
that his mother is Jewish.