Floyd K. Mitchell, Complainant,v.Thomas E. White, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionAug 8, 2002
07A10065 (E.E.O.C. Aug. 8, 2002)

07A10065

08-08-2002

Floyd K. Mitchell, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.


Floyd K. Mitchell v. Department of the Army

07A10065

August 8, 2002

.

Floyd K. Mitchell,

Complainant,

v.

Thomas E. White,

Secretary,

Department of the Army,

Agency.

Appeal No. 07A10065

Agency No. DAY99AR0160E

Hearing No. 280-99-4350X; 280-99-4368

DECISION

Following a decision by an EEOC Administrative Judge both the agency

and complainant filed separate, timely appeals with the Commission.

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts and consolidates

these appeals under the docket number referenced above. Complainant

alleged that he was discriminated against in violation of Title VII of

the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e

et seq. on the basis of his race (African-American) when:

on or about August 27, 1997, he received his Senior Civilian Evaluation

Performance Report which referred to him as a senior supervisor instead

of senior manager; and

on or about August 27, 1997, he learned he had not been selected for

promotion to the position of GS-0205-14 Military Personnel Management

Officer.

On November 6, 1997, complainant, a GS-13 Assistant Military Personnel

Management Officer in the Soldier and Family Support Directorate in

St. Louis, Missouri, filed a formal complaint of discrimination.

On December 4, 1997, the agency issued a decision accepting (2)

for investigation and dismissing (1) for failure to state a claim.

By decision dated February 25, 1999, the Commission reversed the agency's

dismissal of (1) and remanded the complaint to the agency for further

processing consistent with our regulations. Mitchell v. Department of

the Army, EEOC Appeal No. 01981742 (February 25, 1999). Following an

investigation, complainant requested a hearing by an EEOC Administrative

Judge. On February 20, 2001, after a hearing, the EEOC Administrative

Judge issued Findings of Fact and Conclusions of Law finding that the

preponderance of the evidence failed to establish discrimination.

The Administrative Judge then addressed comments made by a senior

management official involved in the discrimination complaint (RMO) and

ordered the agency to train and take appropriate disciplinary action

against RMO. By letter dated April 5, 2001, the agency issued a Final

Order refusing to implement the Administrative Judge's order to train

and discipline RMO, and simultaneously initiated the instant appeal.

Complainant filed his own appeal arguing not only that RMO should receive

training and discipline, but that the Administrative Judge erred in

finding no discrimination.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings

by an Administrative Judge 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 Administrative Judge's conclusions of law are subject to a de novo

standard of review, whether or not a hearing was held.

To prevail in a disparate treatment claim complainant must satisfy the

three-part evidentiary scheme fashioned by the Supreme Court in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish

a prima facie case by demonstrating that he was subjected to an adverse

employment action under circumstances that would support an inference

of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567,

576 (1978). The prima facie inquiry may be dispensed with in this case,

however, since the agency has articulated legitimate and nondiscriminatory

reasons for its conduct. See United States Postal Service Board of

Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department

of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997).

To ultimately prevail, complainant must prove, by a preponderance of the

evidence, that the agency's explanation is a pretext for 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); Texas

Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981);

Holley v. Department of Veterans Affairs, EEOC Request No. 05950842

(November 13, 1997); Pavelka v. Department of the Navy, EEOC Request

No. 05950351 (December 14, 1995).

We affirm the Administrative Judge's finding of no discrimination

with respect to complainant's Senior Civilian Evaluation Performance

Report which referred to complainant as a senior supervisor instead of

senior manager. Complainant asserts that supervisors manage rank and

file staff, while managers manage supervisors. As a manager who manages

supervisors, complainant contends that his duties as a manager are not

fully represented by the term supervisor. The substantial evidence in

the record supports the Administrative Judge's conclusion that the named

management official (Colonel) did not possess the intent to discriminate

against complainant when referring to complainant as a supervisor instead

of manager in the Performance Report. Rather, Colonel asserts that he

used the terms supervisor and manager interchangeably and that he did

not intend to reduce complainant's evaluation by referring to him as a

supervisor. The record contains no evidence that Colonel's explanation

is unworthy of belief or that it is a pretext for race discrimination.

We also affirm the Administrative Judge's finding of no discrimination

with respect to complainant's non-selection for promotion to the position

of GS-0205-14 Military Personnel Management Officer. The selecting

official (RMO) was, at the time of the selection, the agency's chief

of staff. Complainant produced evidence at the hearing of RMO's

racially tainted sentiments. However, we are unable to attribute

complainant's non-selection to RMO's racial animus. The selection at

issue was controlled by the agency's selection panel which, without RMO's

involvement, recommended the most highly rated candidate for selection.

There is no dispute that, upon a tabulation of the ratings given by

the 5-member selection panel, the selectee (Caucasian) received the

highest score. RMO essentially �rubber-stamped� the recommendation of

the selection panel. Complainant offers no evidence that the selection

panel, which interviewed the seven most highly qualified applicants for

the position, was motivated by race-based animus.

We turn now to the issue of whether the Administrative Judge erred in

ordering training and discipline. The Administrative Judge held, in

pertinent part that:

While the undersigned concludes that complainant has not established

discrimination regarding either the issue of his non-selection or the

issue of his performance appraisal, I nonetheless conclude that the

stereotypical and racially biased comments by [RMO] cannot go unaddressed.

* * *

The agency is ordered to take appropriate disciplinary action against

[RMO] and provide [her] with proper diversity and sensitivity training.

While frequently incidents of this ilk require only diversity/sensitivity

training, because of (1) the egregious nature of [RMO's] remarks;

(2) her high level and supervisory authority within the agency;

(3) the pervasive nature of the conduct; and (4) RMO's clear lack of

acknowledgment of her conduct and/or remorse for the same, I conclude

that discipline is warranted.

We have reviewed the record relative to the concerns raised by the

Administrative Judge. The Administrative Judge credited testimony

which attributed various statements demonstrating discriminatory

animus to RMO. We note that these statements were made over time in a

variety of different contexts to several different agency personnel.

These statements were not made during the selection process itself.

RMO was alleged to have stated that: (a) most if not all senior Black

civilians in the command were worthless and she wanted to get rid of them

all; (b) �the Blacks� kept the Command from doing what it wanted to do;

(c) she told non-African American employees that, if they were Black,

they would have received promotions; (d) an agency attorney was �that

little Jewish guy�; and (f) Blacks are holding the agency hostage,

and now is not a good time (to seek promotion) because the N.A.A.C.P.

is stirring things up.

Commission regulations provide that each agency shall conduct a continuing

campaign to eradicate every form of prejudice or discrimination;

review, evaluate and control managerial and supervisory performance

so as to ensure equal opportunity and provide training to assure their

understanding of equal opportunity; and, take appropriate disciplinary

action against employees who engage in discriminatory practices.

29 C.F.R. � 1614.102(a)(3) - (6). In promulgating this policy, the

Commission clearly stated that it could not discipline or order the

discipline of employees directly. 52 Fed. Reg. 41920, 41921 (October

30, 1987). Further, the Commission's regulations regarding relief,

including training, are applicable when �an agency, or the Commission,

finds ... that an applicant or employee has been discriminated against

...� 29 C.F.R. � 1614.501(a). Accordingly, we vacate the Administrative

Judge's order only insofar as it ordered the agency to train and

discipline RMO because we find that this portion of the Administrative

Judge's order exceeded her authority.

Our holding notwithstanding, we remind the agency of its on-going

obligations to conduct a continuing campaign to eradicate prejudice

and to take appropriate disciplinary action against employees who

engage in discriminatory practices. 29 C.F.R. � 1614.102(a)(3), (6).

Compliance with these regulations, which is not contingent upon a finding

of discrimination, could have precluded the Administrative Judge's focus

on training and discipline for RMO and rendered this appeal moot.

For the reasons set forth above, and after careful consideration of

the record, it is the decision of the Equal Employment Opportunity

Commission to AFFIRM the agency's Final Order in so doing, we vacate

the Administrative Judge's order to discipline and train RMO.

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 8, 2002

__________________

Date