Complainant,v.John M. McHugh, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

May 22, 2013

0120120535 (E.E.O.C. May. 22, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

John M. McHugh,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120120535

Hearing No. 420-2010-00162X

Agency No. ARANAD09NOV05128

DECISION

Complainant filed an appeal from the Agency’s final order dated September 9, 2011, finding
no discrimination with regard to his complaint. For the following reasons, we AFFIRM the
Agency’s final order.

BACKGROUND

In his complaint, dated December 21, 2009, Complainant alleged discrimination based on race
(Black) and in reprisal for prior EEO activity when on October 2, 2009, six other temporary
Leaders in the Directorate of Production, Tracked Systems Division were extended on their
temporary assignment and he was not. Upon completion of the investigation of the complaint,
Complainant requested a hearing before an EEOC Administrative Judge (AJ). On September
8, 2011, the AJ issued a decision without holding a hearing, finding no discrimination. The
Agency’s final order implemented the AJ’s decision.

ANALYSIS AND FINDINGS

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. 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,
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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. In this case, we
find that the AJ properly issued a decision without a hearing because no genuine dispute of
material fact exists. Taking into consideration all arguments submitted by Complainant on
appeal, we find that there is no need for a hearing as there is no genuine issue of material fact.

In the instant case, assuming arguendo that Complainant established a prima facie case of
discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged incident. The AJ noted that on June 24, 2007, Complainant was
temporarily promoted, not to exceed October 21, 2007, from his then position as a Heavy
Mobile Equipment Repairer, WG-5803-09, in cost center 52BH, Stryker Vehicle Branch,
Track System Division (TSD), Directorate of Production (DP), Anniston Army Depot (AAD),
to a Heavy Mobile Equipment Mechanic Leader, WL-5803-11, cost center 52BD, Tank
System Branch No. 3, TSD, DP, AAD, Anniston, Alabama. Subsequently, on October 22,
2007, Complainant was reassigned back to his former WG-9 Heavy Mobile Equipment
Repairer position in cost center 52BH, Stryker Vehicle Branch. Then, on September 28, 2008,
Complainant was temporarily promoted to the position of Heavy Mobile Equipment Leader,
WL-5803-11, not to exceed September 27, 2009, in cost center 52BH, second (night) shift,
Stryker Vehicle Branch. On September 27, 2009, Complainant’s temporary promotion expired
and he was reassigned back to his position as Heavy Mobile Equipment Repairer in cost center
52BH, Stryker Vehicle Branch.

Specifically, management indicated that during the relevant time period at issue, they decided
to dissolve the second shift operations in Stryker Vehicle Branch due to its diminishing
workload. Thus, all the second shift employees, including Complainant, in Stryker Vehicle
Branch were moved to the first shift. Management stated that the Stryker’s diminished
workload was the only reason for not extending Complainant’s temporary assignment in the
second shift. Management also stated that other Leaders identified by Complainant were
assigned to other cost centers in Tank Systems Branch, Vehicle Systems Branch, Automotive
Component Repair Branch, and Disassembly Branch, and not in Complainant’s cost center
52BH in Stryker Branch. Only Complainant’s cost center faced a diminished workload.
Complainant does not dispute this on appeal.

Complainant also claimed that he was reassigned back to his former Repairer position because
a White female individual filed a complaint, which was later withdrawn, because she was
dissatisfied with her performance appraisal he issued to her while he was her Leader.
Management denied that the foregoing incident affected the alleged assignment. Management
indicated that in fact, Complainant received the highest performance rating for the period
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during that time ending October 31, 2009. Management denied Complainant’s race and the
foregoing complaint filed against him were factors for the reassignment.

Upon review, we agree with the AJ that Complainant failed to rebut the Agency’s legitimate,
nondiscriminatory reason for not extending his temporary assignment. Furthermore, we find
that Complainant failed to show that he was treated less favorably than a similarly situated
employee under similar circumstances. Based on the foregoing, we find that Complainant
failed to show that the Agency’s action was motivated by discrimination as he alleged.

CONCLUSION

Accordingly, the Agency’s final order is AFFIRMED.

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).
0120120535

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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

May 22, 2013
Date