01976343
08-20-1999
Thurmon Higginbotham, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Thurmon Higginbotham, )
Appellant, )
) Appeal No. 01976343
v. ) Agency No. COL-94-AR-231-E
) Hearing No. 100-97-7389X
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning his Equal Employment Opportunity (EEO) complaint 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.
Appellant alleges that he was discriminated against on the bases of race
(Black) and in reprisal for prior EEO activity when he was issued a
Letter of Concern (LOC) dated December 2, 1992. 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 Deputy Cemetery Administrator at
Arlington National Cemetery in Arlington, Virginia, filed a formal EEO
complaint with the agency on March 8, 1994, alleging discrimination
as referenced above. Appellant originally alleged five incidents
of discrimination. The agency only accepted the incident at issue
herein for investigation.<1> At the conclusion of the investigation,
appellant requested a hearing before an EEOC Administrative Judge (AJ).
Upon the agency's motion and pursuant to 29 C.F.R. � 1614.109(e), the
AJ issued a Recommended Decision (RD) without a hearing, dismissing
appellant's allegation pursuant to 29 C.F.R. � 1614.107(a) for failure
to state a claim.
The AJ concluded that appellant failed to state a claim because he
was not aggrieved by the LOC. In reaching this conclusion, the AJ
determined that the LOC was not disciplinary in nature and was not
placed in appellant's official personnel file. The AJ concluded that
at most, the LOC was a prelude to formal discipline, and ,as such,
did not constitute a harm affecting a term, condition or privilege of
his employment. Assuming arguendo that the LOC was actionable, the AJ
found that appellant failed to establish a prima facie case of racial
discrimination because he did not demonstrate that he was treated less
favorably than a similarly situated employee outside of his protected
class. The AJ also found that appellant did not prove a prima facie
case of retaliation because there was no probative evidence establishing
a causal connection between his prior EEO activity and the LOC. The AJ
ultimately concluded that even if appellant had shown a prima facie case
of discrimination, appellant did not establish, by a preponderance of
the evidence, that the agency's legitimate, nondiscriminatory reason
for issuing the LOC was a pretext for unlawful discrimination.
The agency's FAD adopted the AJ's RD. Appellant's contentions on appeal
concern the agency's compliance with a previous Commission decision,
see note 1 supra, and the AJ's decision to issue a decision without
a hearing. The agency did not submit a statement.
After a careful review of the record, the Commission finds that the AJ
properly dismissed appellant's allegation for failure to state a claim.
The AJ correctly noted that the LOC was not disciplinary in nature and was
not placed in appellant's personnel file. Jackson v. Central Intelligence
Agency, EEOC Request No. 05931177 (June 23, 1994). Rather, the LOC was
intended to explain to appellant that the decline in morale and in the
operating efficiency of the facility was of major concern to upper level
management and that steps were being taken to improve the situation.
The LOC also encouraged appellant to take a positive approach to his
job and to cooperate with his immediate supervisor. We find that the
LOC was used as a management tool to address the need for improvement,
not to affect a term, condition or privilege of appellant's employment.
Senkow v. Department of the Air Force, EEOC Appeal No. 01982577 (April
7, 1999). Accordingly, 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:
August 20, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1 In Higginbotham v. Department of the
Army, EEOC Appeal No. 01944552 (August 8, 1995), the Commission
remanded two of the incidents for clarification. Appellant contends
that he petitioned for enforcement of the Commission's Order.
However, the Commission has no record of having received the
Petition for Enforcement. Moreover, the Commission closed the case
having determined that agency complied with the Commission's Order.