01A42830_r
12-16-2004
Ozell E. Barrett, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Ozell E. Barrett v. Department of Defense (Defense Logistics Agency)
01A42830
December 16, 2004
.
Ozell E. Barrett,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 01A42830
Agency Nos. JQ-02-096, JQ-03-027
Hearing No. 310-2003-05553X
DECISION
Complainant filed this appeal from the March 12, 2004 agency decision
implementing the January 28, 2004 decision of the EEOC Administrative
Judge (AJ) finding no discrimination.
Complainant alleged that he was discriminated against on the bases of
race (African-American), age (D.O.B. July 15, 1952), and reprisal for
prior EEO activity when:
1. Complainant was reassigned from DDOO-SDC to DDOO-SOB and as a result
his overtime hours were reduced;
2. Complainant was denied overtime on December 14, 2002, and December
16, 2002;
3. On December 6, 2002, management violated the provisions of the
Privacy Act by issuing a form which was related to overtime requests
which included complainant's social security number, grade and race;
4. On December 12, 2002, complainant was assigned inventory duties
which were at the WG-07 level for which he was not fully compensated; and
5. On December 19, 2002, complainant learned that a truck driver (Person
A) was given a truck driving position without having a security clearance
and complainant had been denied the same opportunity; and
A supervisor reported to complainant's supervisor that complainant was
standing around talking to other employees.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an AJ.
The AJ issued a notice of intent (notice) to issue a decision without
a hearing (summary judgment) and in his notice identified those facts
not in dispute. After receiving responses to his notice, the AJ issued
a decision without a hearing, finding no discrimination.
The AJ concluded that complainant had failed to establish a prima facie
case of race and age discrimination because complainant failed to show
that similarly situated individuals of another race or younger than
complainant were treated more favorably than complainant. The AJ assumed,
but did not specifically find, that complainant established a prima
facie case of reprisal discrimination. The AJ further concluded that the
agency articulated legitimate, nondiscriminatory reasons for its actions.
The AJ noted that two units had been reorganized and complainant was
treated the same as other similarly situated employees; that complainant
was transferred at the same time as hundreds of other employees; that
complainant was one of 55 employees who was Black; that 212 transferred
employees were White, with 99 over the age of 40 and 198 under the age
of 40. The AJ also noted that complainant received 60 percent of the
overtime granted to employees in his job series. The AJ noted that on
December 6, 2002, a Memorandum was sent to managers directing them to
include inventory accuracy as a critical job element in the performance
plan of all employees whose duties impacted inventory accuracy. The AJ
further noted that inventory accuracy was not an additional duty and
that all employees in complainant's situation were similarly treated.
The AJ noted that Person A was in the truck driving position pending a
security clearance and Person A would be removed, just as complainant
had been removed, if Person A's security clearance was not granted.
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination retaliation. In reaching this conclusion, the AJ found
that complainant did not provide any specific evidence and instead
provided generalized and conclusory evidence concerning how he was
not treated fairly and equally over the years. Concerning claim 3's
Privacy Act claim, the AJ determined that the form was used by management
when obtaining approval to have employees work overtime and was only
used and distributed through supervisors and management officials.
Concerning claim 6, the AJ found that no adverse action was taken
against complainant. Consequently, the AJ concluded that complainant
was not aggrieved regarding claims 3 and 6.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. See 29 C.F.R. � 1614.109(g). This regulation is patterned after
the summary judgment procedure set forth in Rule 56 of the Federal Rules
of Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For a complainant to prevail, he or she must first establish
a prima facie case of discrimination by presenting facts that, if
unexplained, reasonably give rise to an inference of discrimination,
i.e., that a prohibited consideration was a factor in the adverse
employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts
to the agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993). This established order of analysis in discrimination cases, in
which the first step normally consists of determining the existence of
a prima facie case, need not be followed in all cases. Where the agency
has articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis to consider the ultimate issue
of whether complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983).
As an initial matter, the Commission finds that claim 3 fails to state
a claim. The Privacy Act, 5 U.S.C. � 552(g)(1), provides an exclusive
statutory framework governing the disclosure of identifiable information
contained in federal systems of records and jurisdiction rests exclusively
in the United States District Courts for matters brought under the Privacy
Act. See Bucci v. Department of Education, EEOC Request Nos. 05890289,
05890290, 05890291 (April 12, 1989). Likewise, claim 6 fails to state
a claim pursuant to 29 C.F.R. � 1614.107(a)(1). Complainant failed
to show that he was aggrieved, i.e., that he suffered a present harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994). The Commission further
finds that a grant of summary judgment was appropriate, as no genuine
dispute of material fact exists. We find that, as to the remaining claims,
the AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. Further, construing
the evidence to be most favorable to complainant, complainant failed
to present evidence that any of the agency's actions were motivated by
discriminatory animus toward complainant's protected classes.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (Z1199)
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
December 16, 2004
__________________
Date