0120090425
03-24-2009
Evelio E. Cunningham, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Evelio E. Cunningham,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120090425
Agency No. ARCCAD07JUL02601
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's September 24, 2008 final decision concerning his
equal employment opportunity complaint alleging employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq. Complainant alleged that the agency discriminated
against him on the bases of race (Caucasian) and reprisal for prior
protected EEO activity when:
1. on or about July 2, 2007, he was charged with one hour of absence
without leave (AWOL),
2. on or about July 3, 2007, he was charged with 2.75 hours of AWOL, and
3. on or about September 6, 2007, he learned that two WG-8s and one
WG-10 employees were rotated into temporary promotions of 120 days to
an Aircraft Electrician, WG-2892-10 position, and he was not temporarily
promoted.
Following an investigation, complainant was notified of his right to
request a hearing, and did not do so. At the time of his complaint,
complainant was an aircraft electrician, WG-8. Complainant's supervisor
explained that she charged complainant AWOL on July 2, 2007, because
even though she knew he was scheduled to attend a meeting with a
higher level manager at 6:30 AM, complainant did not report to the
hanger at 6 AM as required nor ask her for permission to leave early,
and when he subsequently learned the meeting was canceled, he did not
report back to the hanger until 7 AM. Complainant explained that he
went to the union office to ask for representation the same morning as
the meeting. He stayed there and talked some after learning the meeting
was canceled. Complainant submits an e-mail from a co-worker that he
was with complainant outside in front of the break room of complainant's
hanger from 5:50 AM to 6:05 AM. Complainant contends that he attempted
to notify someone between 6:10 AM and 6:15 AM that he was leaving, but
no one was around. Complainant's supervisor counters that complainant
did not show up for the morning meeting [an attendance muster] at 6 AM,
and she was at work.
On July 3, 2007, complainant attended a meeting from 8 AM to 10:15 AM
about problems he was having with his work leader. In attendance were
complainant, his work leader, complainant's supervisor, a chief steward,
and others. Rather than returning to the hanger after the meeting,
complainant went to the union office, and did not return until about
1:30 PM, resulting in an AWOL charge of 2.75 hours. Complainant filed a
grievance at the union office, and then spent time, as a union steward,
working on the case of another employee.
Complainant's supervisor stated that she charged complainant AWOL
because he did not ask for permission to go to the union hall (rather
than return to the hanger and work). Complainant's supervisor stated
that complainant has left the workplace several times without telling
anyone, and she has spoken to him about that. Complainant countered
that his supervisor gave him permission to go to the union hall to file
a grievance and be out of the workplace. The supervisor stated filing
a grievance may have been raised during the meeting, but it was nothing
definite and complainant did not ask her for permission. The work leader
stated that to his knowledge, complainant did not ask for permission not
to return to the hanger. The chief steward stated that as people were
leaving the meeting, he told complainant's supervisor that they were
leaving to file a grievance, but she did not respond because she was not
paying attention as she was talking to someone else. When asked about
complainant going on to work on the case of another employee, the chief
steward conceded that complainant was supposed to obtain permission from
his supervisor to do so. In fact, when asked why a grievance was not
filed over the AWOL incidents, the chief steward explained that he told
complainant the supervisor's biggest complaint was that he was leaving
the shop without permission.
Complainant's supervisor explained that she did not use a rotation system
to decide who would receive temporary detail promotions. She stated
that she chose the selectees because they were good mechanics who stay
on their aircrafts. She stated that she considered complainant, but he
still had problems communicating with journeyman and work leaders, and
she had complaints from her wage grade 10s that they did not want to work
with complainant. She referenced an October 11, 2006, statement she wrote
that about several complaints from electrical journeyman that complainant
had a problem being told what to do, refused to complete tasks when asked,
and refused to communicate, and she discussed this with complainant.
Complainant, focusing on one work leader, claimed that he was asked him
to do things that were unsafe and was treated disrespectfully.
The agency explained that complainant was charged AWOL because he did
not ask for nor get permission to be away from the hanger. It explained
that he was not selected for temporary promotion because he did not get
along with journeyman because he had problems being told what to do,
refused to complete tasks when asked, and refused to communicate, and
also had problems with work leaders. Complainant has not shown these
explanations were pretext to mask discrimination and reprisal.
Accordingly, after a review of the record in its entirety, including
consideration of all statements submitted on appeal, it is our decision
to affirm the agency's final decision because the preponderance of the
evidence of record does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
March 24, 2009
__________________
Date
2
0120090425
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120090425