01973347
04-09-1999
Victor E. Hancock, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Victor E. Hancock, )
Appellant, )
) Appeal No. 01973347
v. ) Agency No. SAN-95-AR-0506E
) Hearing No. 360-96-8527X
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (�FAD�)
concerning his equal employment opportunity (�EEO�) complaint of unlawful
employment discrimination on the basis of race (African-American) in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq. Appellant alleges he was discriminated against
when he was not selected to become a member of various advisory groups.
This 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 during the relevant time, appellant was employed
as an Administrative Officer at the agency's Health Care Systems Support
Activity (�facility�) in San Antonio, Texas. In 1993, the facility
requested and was granted approval by the agency to reorganize into
the self-directed team concept<1>. Appellant, as one of the facility's
seven division chiefs, served on the facility's Executive Steering Team
which was initially responsible for coordinating the reorganization.
Once the reorganization plan was developed, the Executive Steering Team
was replaced by the Transition Team which at some point became the Work
Force Improvement Team. At the completion of the reorganization, the
facility's command structure consisted of the Commander and the newly
appointed Executive Steering Council (�ESC�)<2>. The ESC was comprised
of five permanent members and one rotating member, was responsible for
the management of the self-directed teams, and reported directly to
the Commander.
In December 1994, the Commander informed appellant that he would not be a
part of the ESC. The Commander stated that appellant did not demonstrate
a belief in the concept of employee empowerment which is the essence of
the directed-team theory. He stated that appellant enjoyed his management
position and resisted relinquishing the position.<3> After appellant
expressed strong disagreement with the decision to exclude him from the
ESC, the Commander stated that he decided to allow the five members of
the ESC to determine if they wanted appellant as a part of the Council.
The members of ESC stated that they did not believe appellant supported
the directed-team concept, and therefore would not be compatible with
the ESC.
Believing he was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a formal complaint on May 4, 1995.
In his complaint, appellant alleged that in addition to his exclusion
from the ESC, the Commander discriminatorily excluded him from the
Partnership Council and Quality Management Board. At the conclusion of
the investigation, appellant received a copy of the investigative report
and requested a hearing before an EEOC Administrative Judge (�AJ�).
Following a hearing, the AJ issued a Recommended Decision (�RD�) finding
no discrimination.
The AJ concluded that appellant failed to establish a prima facie case
of discrimination because the evidence indicated that similarly situated
persons outside appellant's protected group were also excluded from
participation in the various advisory groups. The AJ nevertheless
concluded that the agency articulated legitimate, nondiscriminatory
reasons for its actions, namely, that the Commander and the ESC felt
that appellant's further participation would hinder the mission of the
Committee. The AJ then concluded that appellant did not establish that
more likely than not, the agency's articulated reasons were a pretext
to mask unlawful discrimination. Specifically, the AJ found that
while appellant may question the soundness of the decisions made by the
Commander, he had not shown any discriminatory animus on the part of the
Commander in making the decisions. The agency's FAD adopted the AJ's RD.
On appeal, appellant restates arguments previously made at the hearing.
The agency responds by restating the position it took in its FAD, and
requests that we affirm its FAD.
After a careful review of the record in its entirety, including the
statements submitted on appeal, the Commission finds that the AJ's
RD sets forth the relevant facts and properly analyzes the appropriate
regulations, policies and laws. Nothing proffered by appellant on appeal
differs significantly from the arguments presented at the hearing and
given full consideration by the AJ. Therefore, after a thorough review of
the evidence of record, including arguments and evidence not specifically
addressed in this decision, the Commission discerns no basis to disturb
the AJ's finding of no discrimination. Accordingly, it is the decision
of the Equal Employment Opportunity Commission to AFFIRM the agency's
final decision which adopted the AJ's finding of no discrimination.
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:
April 9, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations1 The self-directed
team concept divided the facility by its core
areas, eliminated most supervisory positions
and allowed all employees to participate in
decision-making.
2 The Commander selected the members for the ESC.
3 In addition, the Commander stated that an outside consultant, hired
to assess the progress of the reorganization, reported that appellant
alone slowed the reorganization by fifty (50) percent.