01980592
01-14-2000
James Parker, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
James Parker v. Department of the Army
01980592
January 14, 2000
.
James Parker,
Complainant,
v.
Louis Caldera,
Secretary,
Department of the Army,
Agency.
Appeal No. 01980592
Agency No. 9502F0040
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) concerning his complaint of unlawful employment
discrimination on the bases of race (Black) and reprisal (prior EEO
activity), in violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. � 2000e et seq.<1> We accept the appeal in accordance
with EEOC Order No. 960.001. For the following reasons, the Commission
AFFIRMS the FAD.
The record reveals that during the relevant time, complainant was
employed as an Assistant Manager at the Giebelstadt Community Club
(club) in Giebelstadt, Germany, operated by the agency's Directorate of
Community Activities (DCA). Complainant claims that he was subjected to
race discrimination as evidenced by the following incidents: (1) From
1990 to 1994 he was denied opportunities for advancement whereas less
qualified persons, some of them White, were noncompetitively assigned
to six club manager positions; (2) he was allocated substandard and
limited resources, and his request for entertainment funds was denied,
with the purpose of causing his club to fail financially (and the club
of a White Manager (WM) to flourish); (3) DCA management did not provide
him with the support he needed to be successful, deliberately causing his
club to fail, but the necessary support was provided to White managers;
(4) DCA management refused to promote him to a Manager position even
though he was in fact performing in this capacity for four years; and,
(5) after his club was closed, DCA management failed to provide a suitable
placement and wrongfully separated him from employment.
Complainant also claims that he was subjected to reprisal when his
entertainment funds were cut off, causing his club to fail, and when he
was terminated, arguing that these incidents occurred after he contacted
the EEO counselor on November 7, 1994.<2>
Believing he was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a formal complaint. At the conclusion
of the investigation, the agency issued its FAD dismissing incident 1
for failure to make timely contact with an EEO counselor, and finding
no discrimination regarding the remainder of the claim. On appeal,
complainant repeats his contentions, further arguing that the agency's
explanations for its actions are merely a pretext for discrimination and
reprisal. The agency avers that the complainant has failed to present
adequate evidence to prove his pretext claim, and requests that we affirm
its FAD.
At the outset, the FAD dismissed incident 1 noting that the advancement
opportunities identified by complainant, consisting of six assignments
to the position of club Manager which took place over a course of time
from 1989 to 1994 (not further specified), was well outside of the 45
day period in which EEO counselor contact must take place. We note that
the record establishes that EEO activity was initiated on November 7,
1994, and complainant provides no explanation for this untimely contact
with respect to the above series of incidents. Complainant does not
address this determination on appeal. Accordingly, we AFFIRM the FAD's
DISMISSAL. See 64 Fed. Reg. 37644, 37656, (1999) (to be codified at 29
C.F.R. �1614.107(b)).
Next, the FAD concluded that complainant failed to establish a prima
facie case of race discrimination because he presented no evidence that
similarly situated individuals not in his protected classes were treated
more favorably under similar circumstances. The FAD also concluded
that because complainant had not engaged in prior protected activity,
apparently referring to the fact that his initial EEO counselor contact
occurred after all of the incidents in question, he failed to establish
a prima facie case of reprisal. The FAD further concluded that even
assuming that complainant had established prima facie cases, he was
unable to prove that the agency's articulated reasons for its actions
were a pretext for discrimination. We concur in these determinations.
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), and Hochstadt v. Worcester Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd,
545 F. 2d 222 (1st Cir. 1976)(applying McDonnell Douglas to retaliation
cases), the Commission agrees with the agency that complainant failed
to establish a prima facie case of race discrimination or reprisal.
Contrary to complainant's contention, we find that the record is
clear that all of the incidents set forth in the complaint occurred
before the November 7, 1994, EEO counselor contact in this case, with
complainant being notified of his separation by letter dated September
22, 1994. Moreover, the record shows that complainant had not engaged
in any other EEO activity prior to this time. Therefore, we conclude
that he fails to establish a prima facie case of reprisal.<3>
Regarding race discrimination, we find that the record is devoid of
any indication that the agency's actions regarding any of the claimed
incidents of discrimination where motivated by racial animus toward
complainant. In his complaint, complainant describes what he avers to be
unfair management practices and strategies, suggesting that they were
motivated by favoritism and politics, but does not contend that this
"disparate treatment" was race-based.<4>
For example, he describes how his paperwork for various requests,
including entertainment in December 1993, was delayed, resulting in
no entertainment for this month, and a huge loss in holiday sales as
a consequence. However, he does not contend that this was racially
motivated, instead suggesting a personalty conflict between himself and
certain DCA management officials who he feels did not give him sufficient
credit for his skills and successes in his position. He also suggests
that his entertainment funding was cut off so that his club would fail
and an associated club, run by WM, would succeed, but contends that
this occurred because of favoritism toward WM as former military person,
and does not mention race as a factor. Regarding the lack of management
support, complainant contends that all the other club Managers fared
far better than he, but again fails to explain why this was evidence of
race discrimination, especially in light of the fact that many of the
club Managers were the same race as complainant.<5> Furthermore, he
also describes management's refusal to promote him to club Manager,<6>
the agency's failure to place him into a suitable position after his
club was closed,<7> and his separation,<8> as unfair, but provides no
explanation as to how these decisions were motivated by racial animus.
Given the lack of any evidence or argument to suggest racial
discrimination as a motive, we find that complainant has not established
a prima facie case of race discrimination. Furthermore, it is well
established that the EEO process is not be to used as a substitute
for management decisions which may appear unfair, but which were not
motivated by discriminatory animus. See Lloyd v. Department of Justice,
EEOC Appeal No. 01952370 (May 6, 1997).
Although, on appeal, complainant argues that he did establish a prima
facie case of race discrimination, and that the agency's reasons are a
pretext for race discrimination, we concur with the FAD that complainant
has submitted no credible evidence to prove pretext, simply making the
argument that the agency's actions might have been racially motivated.
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 FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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 64
Fed. Reg. 37,644 37,659 (1999)(to be codified and hereinafter referred to
as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)(to be
codified and hereinafter referred to as 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 (S1199)
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
January 14, 2000
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2According to the Report of Investigation, complainant withdrew the basis
of reprisal. However, we are unable to locate such a statement in the
record, and we note that complainant's reprisal claim is addressed in the
FAD and on appeal. Therefore, we will include it in this determination.
3We note that complainant contends that he has challenged DCA management
over the years regarding various policies and practices, and asks that
this be construed as prior EEO activity. We decline to do so because
there is no evidence that any of the protected bases under the laws and
regulations enforced by this Commission were involved in these challenges,
and the statement itself is quite vague regarding the content, time,
or place of these challenges.
4Complainant sets forth his arguments in the context of race
discrimination for the first time in his statement on appeal.
5We note that one witness, a personnel clerk, testified that he was told
by two former club Managers that they had resigned because management did
not provide adequate support, averring that racism was a factor. However,
because this testimony is hearsay, we find that it has substantially
diminished probative value, and weight it accordingly.
6The record shows that complainant received the same salary as a Manager,
and that because of the small size of his club, it was not designated
to have a "Manager" position.
7In this regard, we note that at the time of complainant's separation,
no positions were available which he deemed to be suitable.
8The record shows that the club had become unprofitable, never recovering
from the decline in sales in December 1993, and that it was closed under
a reduction-in-force/reorganization directive, and that complainant was
subsequently separated when no suitable position could be obtained for
him.