Terence Warren, Complainant,v.Condoleezza Rice, Secretary, Department of State, Agency.

Equal Employment Opportunity CommissionMar 16, 2005
01a40454 (E.E.O.C. Mar. 16, 2005)

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.