0120082355
09-26-2008
William Jarosz, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
William Jarosz,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120082355
Agency No. 6X1S07002TF08
DECISION
Complainant filed an appeal from the agency's March 13, 2008 final
decision concerning his equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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 worked
as a Scientist, YD-1301-03, at the agency's Peterson Air Force Base
in Colorado.
Complainant filed an EEO complaint alleging that he was discriminated
against on the bases of age and in reprisal for prior protected EEO
activity. Complainant's formal complaint was processed through the
agency's Compressed, Orderly, Rapid, and Equitable (CORE) pilot program.
In its final decision, dated March 13, 2008, the agency set forth that
complainant's complaint was comprised of the following claims:
Whether complainant was discriminated against based on age (56):
1. when on August 27, 2006, the Director of Plans and Requirements
denied the complainant's request to attend the Program Management Training
(PMT) 401; and
2. with regard to the 14-day disciplinary suspension from duty without
pay effective December 4-17, 2006.
Whether complainant was discriminated against based on reprisal (for
filing informal complaint No. 6X1S07002T on December 6, 2006) when:
3. on an unspecified date, the Director of Plans and Requirements
allegedly made negative comments about the complainant to a potential
employer.
4. on or about January 18, 2007, the complainant was informed that his
access to classified information had been suspended.
5. Whether complainant was subjected to unlawful discrimination and
harassment based on reprisal (for filing informal complaint No. 6X1S07002T
on December 6, 2006) when:
a. on March 28, 2007, complainant was denied official time to work a
response to specific actions pertaining to this complaint; and
b. on dates not specified in the record, the complainant was allegedly
treated like a junior officer with a general lack of respect.
In its final decision, the agency found that complainant was not subjected
to unlawful discrimination and/or retaliation. Regarding claim (1),
the denial of complainant's training request, the agency stated that
it articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, the agency stated that complainant's training request was
not job related and that complainant's work ethic and potential were
not consistent with work as an Acquisition Category Program Manager.
The agency found that complainant failed to establish that the agency's
articulated reason was pretext for discrimination.
Regarding claim (2), the suspension, the agency stated that it articulated
legitimate, nondiscriminatory reasons for its actions. Specifically,
the agency stated that the suspension was based on complainant's failure
to follow proper procedures for requesting leave; falsification of
time cards; and insubordination. The agency found that complainant
failed to establish that the agency's articulated reason was pretext
for discrimination.
Regarding claim (3), an agency official making negative comments to
a potential employer, the agency stated that complainant's supervisor
acknowledged that she told a caller that she would not hire complainant.
Regarding claim (4), the suspension of complainant's access to classified
information, the agency noted that the Commission is precluded from
reviewing the substance of security clearance decisions. Regarding the
alleged incidents set forth in (5)(a) and (5)(b), the agency stated that
they are not sufficiently severe or pervasive to constitute harassment. 1
Complainant, on appeal, raises numerous arguments and asserts that
the agency's final decision finding no discrimination is improper.
Complainant states that the burden of proof is on the agency. Complainant
further states that he wants "to move to a standard EEOC process versus a
[Compressed, Orderly, Rapid, and Equitable] (CORE) process where I was
cut short of the balance..."
ANALYSIS AND FINDINGS
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, 120 S.Ct. 2097 (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).
As an initial matter, complainant requests that his complaint be processed
under the traditional EEO process rather than the CORE process, we deny
this request. The record contains a CORE Process Election form signed
by complainant and dated January 10, 2007. Therein, complainant elected
to process his complaint through the agency's pilot program, the CORE
process.2
Claim (1)-Denial of Training
The Commission finds that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The record contains testimony
obtained during a CORE fact-finding conference from the Director of
Plans and Requirements (D1) during the relevant time period. D1 stated
that "I had declined to endorse his application for PMT 401 because I
didn't think that he had the proper work ethic or potential to serve in
the position of an ACAT program manager, which is what that particular
course was designed to train people to do." CORE Fact-Finding Transcript
(CT) at 30.
In addition, the record contains testimony obtained during the CORE
fact-finding conference from the Deputy Director of Plans and Requirements
(D2) during the relevant time period. D2 asserted that he recommended
to D1 not to endorse complainant's application for the training.
Specifically, D2 stated that complainant did not need the training for
his current position. CT at 64. In addition, D2 stated that "they also
make it clear that we should only nominate people who we believe have the
capabilities to grow into relatively senior leadership and management
positions. Even with [my] limited exposure to [complainant] at the
time, having to explain to him how to fill out time cards, how to fill
out leave slips, and make leave requests, it was clear in my mind that
[complainant] was not ready for those leadership opportunities..." Id.
Upon review of the record, we find that complainant failed to establish
that the agency's articulated reason was pretext for discrimination.
Claim (2)-Suspension
The Commission finds that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Complainant's supervisor
(S1) during the CORE fact-finding conference stated that she proposed to
suspend complainant. S1 stated that complainant failed to follow proper
leave request procedures. Specifically, S1 stated that complainant
called and left a message on her voice mail at work on a Sunday that he
would not be at work on a Monday. S1 further stated that complainant did
not follow proper procedure by obtaining approval for leave in advance
and did not try to follow up with her on Monday.3 CT at 76. S1 also
stated that there were discrepancies between complainant's reported work
hours on his time cards and the door logs. S1 stated that she provided
complainant a timeframe in order to respond to these discrepancies,
but he did not reply during this specified period.4 CT at 78, 82.
Upon review of the record, we find that complainant failed to establish
that the agency's actions were pretext for discrimination.
Claim (3)-Negative Comments to a Potential Employer
During the fact-finding conference, S1 stated that she was contacted
about a reference for complainant from a potential employer. S1 stated
that she was asked if she would hire complainant and that she responded
"no." CT at 86. S1, during the fact-finding conference, in reference to
complainant's performance stated that he would not get things done and
there were numerous issues that she had to take him off of and assign
to other people. CT at 75.
Upon review of the record, we find that complainant failed to establish
that S1's actions were a pretext for retaliation.
Claim (4)-Access to Classified Material Suspended
Regarding complainant's claim that his security clearance was suspended,
we find that that this matter fails to state a claim. The Commission has
held that the validity of the requirement of a security clearance and the
substance of a security clearance determination is not subject to review
within the scope of the EEO complaint process. Thierjung v. Department
of Defense (Defense Mapping Agency), EEOC Request No. 05880664 (November
2, 1989); see also "Policy Guidance on the Use of National Security
Exception contained in 703(g) of Title VII of the Civil Rights Act of
1964, as amended.", EEOC Notice No. N-915-041 (May 1,1989).
Claim (5)(a)-Official Time
EEOC Regulation 29 C.F.R. � 1614.605(b) provides, in relevant part, that
complainant "shall have a reasonable amount of official time, if otherwise
on duty, to prepare the complaint and respond to agency and EEOC requests
for information." The Commission has stated that an allegation pertaining
to the denial of official time states a separately-processable claim
alleging a violation of the Commission's regulations, without requiring
a determination of whether the action was motivated by discrimination.
See Edwards v. United States Postal Service, EEOC Request No. 05960179
(December 23, 1996). The Commission held that such a claim should not be
processed in accordance with 29 C.F.R. � 1614.108, since the focus is not
on the motivation, but rather the justification of why the complainant
was denied a reasonable amount of official time. Id.
The Commission finds that the record does not reflect that the agency
denied complainant a reasonable amount of official time. The record
contains copies of various e-mails between complainant and S1 regarding
official time. In an e-mail dated March 27, 2008, complainant requested
1.5 hours of official time from S1. In response, S1 asked complainant
what the official time was for. Complainant replied "[a]ll these are
in defense of the three issues you raised. Work will continue in
that area." On March 28, 2007, S1 stated, in pertinent part, that
"[i]f...you are working on a formal EEO complaint, please identify
your time requests as such...I am willing to work with you on granting
appropriate time, however, you need to clearly state what it is you are
working on...It is not within my authority to grant blanket time-off."
Complainant responded "I am working the formal EEO action and specific
details of the information." S1 replied, in pertinent part, that "[i]f
the formal EEO complaint, has been filed, have you received a request for
information...What are you requesting time to do?' Complainant replied
that the purpose of the time was "EEO support/information development."
S1 stated that "I have asked very specific questions which you have
chosen not to answer...You have not given me any indication that you are
responding to any request or that there is a meeting coming up...unless
you are able to provide me with more specific [information], you will
have to either take annual leave or leave without pay." Based on the
foregoing, we do not find that the agency denied complainant a reasonable
amount of official time.
Claim (5)(b)-Harassment
To establish a claim of harassment based on race, sex, disability, age,
or reprisal, complainant must show that: (1) he is a member of the
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. The
harasser's conduct should be evaluated from the objective viewpoint of a
reasonable person in the victim's circumstances. Enforcement Guidance on
Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
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). In the case of harassment by a supervisor, complainant must
also show that there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Upon review of the record, we find that complainant failed to establish a
prima facie case of harassment. While complainant raised various alleged
incidents in support of this claim, complainant has not established that
these alleged incidents were based on his protected classes.
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
final decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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 (Z0408)
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
September 26, 2008
Date
1 The record reflects that complainant was subsequently terminated
from his position; however, his termination is not part of the instant
complaint.
2Pursuant to CORE procedures, the Department of Defense Civilian Personnel
Management Service, Investigations and Resolution Division scheduled a
CORE Fact Finding Conference on July 10, 2007, during which a transcript
was produced. The CORE Fact Finder issued a CORE Recommended Decision
based upon the Investigative File and the transcript. The aforementioned
decision was provided to the Air Force Civilian Appellate Review Office
(AFCARO), and AFCARO issued the instant final decision.
3 At the fact-finding conference, complainant acknowledged that he left
a message for complainant at work on Sunday and did not try to follow
up with another call to his supervisor on Monday. CT at 13-14.
4 At the fact-finding conference, complainant acknowledged that he did
not respond within the specified time frame. CT at 21.
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0120082355
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120082355