Victor E. Hancock, Appellant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionApr 9, 1999
01973347 (E.E.O.C. Apr. 9, 1999)

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.