0120072447
06-04-2009
Tommy L. Mitchenor, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Tommy L. Mitchenor,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120072447
Hearing No. 170-2006-00010X
Agency No. ARFTMON04MAR0009
DECISION
On April 23, 2007, complainant filed an appeal from the agency's March 27,
2007 final decision 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. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant was
assigned to a six-month detail as a Contracting Officer Representative
(COR) at the agency's Eagle Base facility in Bosnia. On June 8, 2004,
complainant filed an EEO complaint alleging that he was discriminated
against on the bases of his race (African-American) and in reprisal for
prior protected EEO activity when management did not select him for the
position of Logistics Management Specialist, GS-12, in the Readiness
Directorate of the Logistics Readiness Center.
Complainant also alleged that he was subjected to a hostile work
environment on the bases of race and reprisal when:
1. on or about November 2, 2003, complainant was accused of arriving
at Fort Benning, Georgia to attend training for his six-month detail to
Bosnia a week early in order to visit with family in the area;
2. the contract personnel under complainant's supervision continued
to deal with the Chief, Army Material Command (CAMC), instead of
complainant, which undermined complainant's authority;
3. complainant was not assigned a personal vehicle, nor was he
permitted to park his vehicle at the security office;
4. one of the contract employees at complainant's facility sent at
least 10 e-mail messages laden with racial slurs but management failed
to take any action;
5. management held complainant to a different assignment of duties
than the previous COR when he was not permitted to manage civilian
personnel in Kosovo, when he was required to have his timesheets signed,
and when he was given a workspace situated next to the CAMC's office;
6. on or about December 2003, his Secret Internet Protocol
Reporting Network report was not forwarded to his supervisor (S1) by
S1's Administrative Officer;
7. on February 6, 2004, complainant moved personnel to a new
location three days in advance of the schedule move date, but the
CAMC then changed the scheduled move date to February 2, 2004, without
notifying complainant; and
8. the CAMC sent S1 an email on March 9, 2004, stating that he
wanted complainant removed from his position in Bosnia.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested
a hearing but the AJ assigned to the case issued an Order of Dismissal,
dated February 12, 2007, after complainant failed to appear at the
scheduled hearing or to show good cause for his failure to do so.
The AJ remanded the complaint to the agency, and the agency issued
a final agency decision (FAD) pursuant to 29 C.F.R. � 1614.110(b),
finding no discrimination. In its FAD, the agency concluded that
assuming, arguendo, complainant had established a prima facie case of
race and reprisal discrimination, it nonetheless articulated legitimate,
nondiscriminatory reasons for its actions that complainant failed to
show were a pretext for unlawful discrimination. On appeal, complainant
reiterates his contention that he was subjected to unlawful race and
reprisal discrimination, and that the agency's articulated reasons for
its actions are pretextual.
ANALYSIS AND FINDINGS
Initially, we find that the AJ acted within his discretion when he
issued the order of dismissal remanding the complaint to the agency for
issuance of a FAD, because complainant failed to articulate a reasonable
explanation as to why he failed to appear at the scheduled hearing.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
Non-Selection
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
He must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of
the Navy, EEOC Request No. 05950351 (December 14, 1995).
Here, we find that assuming, arguendo, complainant established a prima
face case of race and reprisal discrimination, the agency articulated
legitimate, nondiscriminatory reasons for its actions. Specifically, the
record reflects that complainant applied for the position of Logistics
Management Specialist, GS-12, advertised on February 22, 2004, under
vacancy announcement number NEAL04701128. The record also reflects that
complainant was among the candidates referred for consideration and that,
following an interview, he was ranked in second place below the selectee.
(Report of Investigation, 98-108). The selecting officials for the
position at issue stated that the selectee performed better in the
interview than complainant, but that their qualifications were comparable
and if the selectee had declined the position, they would have selected
complainant. (R.O.I., 13-15). We find that complainant has failed to
proffer any persuasive evidence to show that his qualifications for the
position at issue were observably superior to those of the selectee,
or that his non-selection was motivated by discriminatory animus toward
his race or prior EEO activity.
Hostile Work Environment
To establish a prima facie case of hostile environment harassment,
a complainant must show that: (1) he is a member of a statutorily
protected class; (2) he was subjected to harassment in the form of
unwelcome verbal or physical conduct involving the protected class;
(3) the harassment complained of was based on the statutorily protected
class; and (4) the harassment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with
the work environment and/or creating an intimidating, hostile, or
offensive work environment. Humphrey v. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. �1604.11. Further,
the incidents must have been "sufficiently severe and pervasive to alter
the conditions of complainant's employment and create an abusive working
environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993);
see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75 (1998).
Here, we find that complainant has not established a prima facie case
of harassment because he has not shown that the incidents alleged were
related to his race or prior EEO activity. We also find that he failed to
show that the incidents at issue occurred as alleged, or were sufficiently
severe or pervasive so as to rise to the level of actionable harassment.
Specifically, the record reflects that complainant was detailed for a
179-day tour to the COR position in Bosnia. Complainant was recalled
early from this detail at the request of the CAMC. By e-mail dated
March 9, 2004, the CAMC requested that complainant's detail be ended
because he had "lost [his] faith in [complainant's] qualification to
perform the duties" and "in his [complainant's] being a team player."
(R.O.I., 255). S1 corroborated these statements in an e-mail dated
March 10, 2004, which stated that he believed complainant "was out of
his league and [did not] have the knowledge or the ability to represent
us and support the AMC/CECOM mission." (R.O.I., 233-234). We find that
complainant has proffered no evidence, beyond his bare assertions, that
the agency's actions were motivated by discriminatory animus toward his
protected classes. Additionally, we note that with respect to claim
(4), the record reflects that the e-mails were newsletters sent by a
government contract employee, and were not directed toward complainant
nor specifically directed toward complainant's race. The record also
reflects that the content of the newsletters was found to be inappropriate
by management, and the author of the newsletters was, in fact, reprimanded
and disciplined for sending the e-mails. (R.O.I., 16).
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
June 4, 2009
Date
2
0120072447
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120072447