James Parker, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionJan 14, 2000
01980592 (E.E.O.C. Jan. 14, 2000)

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.