0120102928
04-27-2012
Bobbie Patterson, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Bobbie Patterson,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120102928
Hearing No. 410-2008-00441X
Agency No. ARGORDON08JAN00104
DECISION
Complainant filed an appeal from the Agency's final order dated June 3, 2010, finding no discrimination with regard to his complaint. For the following reasons, we AFFIRM the Agency's final order.
BACKGROUND
In his complaint, Complainant alleged discrimination based on race (African American) when he was precluded from competing for a promotion. Upon completion of the investigation of the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On May 18, 2010, the AJ, after a hearing, issued a decision finding no discrimination, which was implemented by the Agency in its final order.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
In this case, assuming arguendo that Complainant had established a prima facie case of discrimination, the AJ determined that the Agency has articulated legitimate, nondiscriminatory reasons for the alleged incidents. The AJ stated that Complainant failed to show by a preponderance of the evidence that the Agency's proffered reasons were pretextual. Upon review, we find that the AJ's factual findings of no discriminatory intent are supported by substantial evidence in the record. The record indicates that at the time of the alleged incident, Complainant was a Civilian Telecommunication Specialist, GS-12, Force Integration Section (FIS), Force Requirements Branch (FRB), Capability Development Integration Directorate (CDID) at the Agency. The AJ noted that previously in February, 2007, as a result of the reorganization of the CDID department, Complainant's supervisor of FIS and another supervisor of the OFIS (Operational Forces Integration Section) were asked to identify one person they wish to be the deputy of their prospective sections and define the deputy as the person that would take responsibility in the supervisor's absence. Complainant's supervisor chose Individual A as the deputy for the FIS based on seniority and the other supervisor identified Individual B as the deputy for the OFIS. There is no evidence that Complainant previously complained about not getting this deputy assignment at that time.
The AJ noted that in the summer of 2007, an audit of the CDID offices concluded there were twelve positions, including Individuals A and B, that were underpaid. Following the audit, although the director of the CDID wanted to increase the foregoing underpaid individuals' pay, he was not able to do so due to a lack of money in the budget. In September 2007, the CDID ultimately received more money for its budget and the director decided to upgrade the twelve positions, including Individuals A and B, in order to give them a higher salary non-competitively since they were already performing a higher level of responsibilities. The AJ indicated that the director, at the relevant time period, was also advised by the Civilian Personnel Advisory Center that he had no legal obligation to compete the GS-13 positions at issue. The record indicates that Individuals A and B were officially upgraded to GS-13 positions at issue effective December 7, 2007.
Based on the entire record of evidence, the AJ determined and we agree that there was no indication that the director's decision to upgrade Individuals A and B non-competitively was based on the race of Complainant. The AJ further noted that despite Complainant's contentions, he failed to convince her that if there were a competitive promotion that he would likely have been the one chosen for the job.
CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted on appeal, the Agency's final order is AFFIRMED because the AJ's decision is supported by substantial evidence.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
4/27/12
__________________
Date
4
0120102928
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013