0120061341
08-29-2007
David A. Williams, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
David A. Williams,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 01200613411
Agency No. AREUKAI03JAN000001
Hearing No. 100-2004-00297X
DECISION
Complainant filed an appeal with this Commission from the November 7,
2005 agency decision which implemented the September 16, 2005 decision
of an EEOC Administrative Judge (AJ) finding no discrimination.
Complainant alleged that the agency discriminated against him on the bases
of his race (African American) and in reprisal for prior EEO activity
when: (1) complainant was not compensated for performing higher level
duties from February 1, 2002 to December 2002; (2) on January 10, 2003,
and January 17, 2003, complainant was issued a Letter of Counseling;
(3) on March 14, 2003, complainant was issued a Letter of Counseling;
(4) on May 12, 2003, he was issued a Letter of Reprimand; and (5)
complainant was issued a "Successful Level 2" performance evaluation
for the rating period May 1, 2002 to April 30, 2003.
After a review of the record in its entirety, including consideration of
all statements submitted on appeal, it is the decision of the Commission
to affirm the agency's decision. The AJ's issuance of a decision without
a hearing (summary judgment) was appropriate because no genuine issues
of material fact exist. See 29 C.F.R. � 1614.109(g); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986); Celotex v. Catrett, 477 U.S. 317,
322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st
Cir. 1988).
In her decision, the AJ individually addressed each of the acts of
alleged discrimination and found that even assuming that complainant
had presented a prima facie case of discrimination, the agency had
articulated legitimate, nondiscriminatory reasons for each of the acts of
alleged discrimination and complainant had failed to rebut the agency's
articulated reasons or present evidence that the agency's actions were
based on a protected basis.
The record reveals that on February 2, 2002, complainant, who had engaged
in prior EEO activity of which the alleged management officials were
aware, was reassigned to the position of Lead Operations Financial Clerk,
at a grade level GS-5 when his position of Technical Inspector, GS-5,
was abolished. The record also reveals that the position of Custodian
of Postal Effects (COPE) was abolished. The record also reveals that
complainant was issued letters of counseling by his immediate supervisor
because customer complaints were filed about complainant and because he
was discourteous and disrespectful toward his supervisor. The record
also reveals that complainant was issued a Letter of Reprimand for
discourtesy, disruptive behavior, defiance of authority, and failure
to follow directives. The record reveals further that the evaluation
complainant received was a reflection of his performance, including his
failure to perform research independently, issues regarding communication
skills and failing to submit reports timely. The agency, therefore,
articulated legitimate, nondiscriminatory reasons for the actions taken
against complainant. See McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973).
Construing the evidence in the light most favorable to complainant,
including assuming that complainant was given additional duties in his
reassignment, it is the conclusion of the Commission that complainant
has failed to show by a preponderance of the evidence that the agency's
articulated reasons for its actions were mere pretext to mask unlawful
discrimination and that the agency was motivated by discriminatory animus
and reprisal. See U.S. Postal Service Board of Governors v. Aikens,
460 U.S. 711, 713-714 (1983).
At all times, the ultimate burden of persuasion remains with complainant
to demonstrate by a preponderance of the evidence that the agency's
reasons were pretextual or motivated by intentional discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
Complainant failed to carry this burden.
The agency's decision 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
August 29, 2007
__________________
Date
1 Due to a new data system, this appeal has been re-designated with the
above-referenced appeal number.
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0120061341
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036