01A40044
06-02-2004
Bobby L. Moody, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Bobby L. Moody v. Department of the Army
01A40044
June 2, 2004
.
Bobby L. Moody,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A40044
Agency No. BODNF00107B-0280
Hearing No. 140-2002-08228X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
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 accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission Affirms the agency's final
order.
The record reveals that complainant, a Photographer GS-1060-07 at the
agency's Fort Bragg Photo Lab facility, filed a formal EEO complaint on
July 31, 2001. He alleged that the agency had discriminated against
him on the bases of his sex (male), age (D.O.B.7/1/48), and reprisal
for prior EEO activity when:
(1) the agency demoted him from his position of Supervisory Photographer
during his probationary period;
(2) the agency issued complainant a Letter of Reprimand on July 13,
2001.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ concluded that assuming complainant established a prima facie case
of gender, age discrimination and retaliation for his prior protected
EEO activity, complainant failed to demonstrate the agency's reasons
for taking the actions in question were a pretext for discrimination.
More specifically, the agency's managers noted that complainant performed
poorly in his supervisory responsibilities, he failed to communicate
effectively with his subordinates, he was unable to handle the stress
and he failed to provide sound mentoring to the employees he supervised.
In addition, the agency gave complainant a letter of reprimand based on
the fact that he was responsible for the destruction of visual aids, he
was discourteous and argumentative towards supervisors and was inattentive
to the customers. The letter of reprimand warned complainant not to
use condescending tones or sexist language when talking to subordinates
and other supervisors. The agency's final order implemented the AJ's
decision.
On appeal, complainant argues that his demotion was motivated by sex
discrimination because he had proposed the reprimand of a subordinate
female employee. Complainant also argues that the Letter of Reprimand
he received was motivated by his gender because other female employees
only received an oral counseling.
In response, the agency argues that the decision to demote complainant
from his supervisory position was reached long before complainant proposed
to discipline a female subordinate and was not connected to that decision.
The agency argues that the AJ's finding that the Letter of Reprimand given
to complainant was based on his misconduct was supported by substantial
evidence in the record and should not be disturbed on appeal. The agency
requests that we affirm 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.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record and
that the AJ's decision will not be disturbed on appeal. In particular,
the AJ found that the agency's managers informally counseled complainant
about his poor supervisory skills, and about customer complaints prior
to demoting him. Complainant did not refute that the agency had more
latitude in demoting complainant during his probationary period and as
such, complainant's supervisors were not required to issue a written
reprimand prior to deciding to demote him. In addition, the AJ found
sufficient evidence that complainant had engaged in misconduct subsequent
to his demotion which supported the agency's decision to issue a Letter
of Reprimand. Moreover, there was no support for complainant's argument
that other female employees were treated more favorably than complainant
surrounding the agency's decisions regarding disciplinary actions.
In sum, complainant failed to persuade the Commission that the AJ's
findings of fact were not supported by the evidence and instead, that
the agency's actions were in retaliation for complainant's prior EEO
activity or were motivated by discriminatory animus toward complainant's
gender or his age. Therefore, after a careful review of the record,
including complainant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we affirm the agency's final order.
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
June 2, 2004
__________________
Date