0120081701
08-28-2008
Wynard A. Morrow, Complainant, v. Ed Schafer, Secretary, Department of Agriculture, Agency.
Wynard A. Morrow,
Complainant,
v.
Ed Schafer,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120081701
Hearing No. 530-2006-00139X
Agency No. NCRS-2006-02488
DECISION
Complainant filed an appeal from the agency's March 13, 2008 final order,
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. and
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).
During the relevant period, complainant was employed as a Civil
Engineer at a West Virginia facility of the agency. In a formal EEO
complaint dated September 26, 2006, complainant alleged that the agency
subjected him to hostile work environment harassment based on race
(African-American), color (Black), and age (over 40) when his supervisor
(S1) (1) since September 2005, did not allow him to serve as "acting"
in his absence, which denied complainant experience and advancement
opportunities, (2) on December 20, 2005, issued him a letter of caution
citing two late arrivals and alleging failure to follow established leave
policy, (3) on March 13, 2006, issued complainant a letter removing
him from "flexi-tour" and placing him on a "basic" work schedule, (4)
prevented complainant from presenting or interacting at subject-matter
meetings or public forums, (5) on November 10, 2005, forced complainant to
submit inaccurate information for his October 2005 time and attendance
report, and (6) proposed complainant's removal alleging misuse of a
government travel card1.
During the agency's investigation, complainant stated that S1 became his
supervisor in July 2005 and his second-level supervisor (S2) encumbered
said position several months earlier (in March 2005), and he noticed a
significant change in management-style with their arrivals. Further,
complainant stated that he was the only African-American on S1's staff.
In response to complainant's contentions, S1 stated: (1) he generally
used his peers (Senior Staff) as "acting" in his absence and used a
subordinate staff member once, and he did not fully trust complainant to
serve as "acting" due to several conduct issues, (2) in a December 1,
2005 staff meeting, he discussed the leave policy for those under his
direct supervision and he witnessed complainant violate the articulated
policy on December 19 and 20 (S1 noted that he issued a letter of
caution to an employee who is outside of complainant's protected classes
in September 2006), (3) he removed complainant from "flexi-tour" as
progressive discipline for violations following the letter of caution, (4)
complainant did attend some meetings but S1 and S2 felt a need to attend
most meetings to create a new and better relationship with agencies than
that established by their predecessors, and (5) there were discrepancies
regarding complainant's time and attendance records during the relevant
period and he directed complainant to correct the inaccuracies, as he
has done with any of his staff with the same issue. Also, S1 stated
that his management style was different than complainant's previous
supervisor but his decisions were not motivated by discriminatory bases.
Following the agency investigation, complainant requested a hearing
before an EEOC Administrative Judge (AJ). The AJ assigned to the
matter determined that the complaint did not warrant a hearing and,
over complainant's objections, issued a decision without a hearing on
December 18, 2007. Specifically, the AJ stated that complainant failed
to establish that the legitimate, nondiscriminatory reasons articulated by
the agency for its actions are pretext or that the agency actions alleged
rose to the level of a hostile work environment. On March 13, 2008, the
agency issued a final order adopting the AJ's finding that complainant
failed to prove that he was subjected to discrimination as alleged.
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we determine that
it was appropriate for the AJ to issue a decision without a hearing
on this record. Further, we find that complainant failed to prove,
by a preponderance of the evidence, that the agency's explanations are
pretext for discrimination. Complainant failed to show that the agency's
actions were based on discriminatory motives. We AFFIRM the final agency
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
August 28, 2008
__________________
Date
1 The record indicates that complainant retired effective October 27,
2006.
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0120081701
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120081701