01A22083
03-27-2003
Jerry W. Blevins, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Jerry W. Blevins v. Department of the Army
01A22083
March 27, 2003
.
Jerry W. Blevins,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A22083
Agency No. BWHJFO0104B0040
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
The record reveals that during the relevant time, complainant was
employed by the agency as a Supervisory Industrial Engineer at the 279th
Base Support Battalion in Bamberg, Germany. Complainant alleged in his
complaint that he was subjected to unlawful discrimination on the bases
of his race (Caucasian) and age (fifty-seven years of age at the time
of the complained-of agency actions) when (1) on June 20, 2000, he was
compelled by the base Executive Officer to sign a rotational agreement
returning him to his former place of employment in the United States;
(2) on June 20, 2000, he was issued a Notification of Failure to Complete
Supervisory Probationary Period; and (3) between April 25, 2000 and June
28, 2000, he was charged with absent without leave and leave without pay
on his time cards. At the conclusion of the agency's investigation into
the complaint, complainant was informed of his right to request a hearing
before an EEOC Administrative Judge or, alternatively, to receive a FAD
by the agency. Complainant requested that the agency issue a FAD.
In its FAD, the agency concluded that complainant had failed to prove his
discrimination claims. First, the agency found that complainant failed to
establish a prima facie case of race or age discrimination. The agency
then found that even assuming complainant had established a prima facie
case of race or age discrimination, it had articulated legitimate,
nondiscriminatory reasons for the complained-of actions�that signing
a rotational agreement was a standard requirement for his position, and
that he was returned to his previous position in the United States because
of a number of conduct issues, including excessive unauthorized absence
from the workplace, disrespect of his superiors, bizarre behavior in the
workplace, inappropriate attire, and failure to satisfactorily perform
and accomplish his supervisory duties. The agency further found that
complainant failed to present any evidence which supported his claims
of discriminatory treatment. This appeal followed.
In claims such as those presented by complainant, which allege disparate
treatment based upon race and/or age, and where there is an absence of
direct evidence of such discrimination, the allocation of burdens and
order of presentation of proof is a three-step process. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-03 (1973); see also Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 142 (2000) (applying the McDonnell
Douglas analytical framework to an ADEA disparate treatment claim).
First, complainant must establish a prima facie case of discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination; i.e., that a prohibited consideration was
a factor in the adverse employment action. Kimble v. Department of
the Navy, EEOC Appeal No. 01983020 (Aug. 22, 2001). Next, the agency
must articulate a legitimate, nondiscriminatory reason for its actions.
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
If the agency is successful in meeting its burden, complainant must
prove, by a preponderance of the evidence, that the legitimate reason
proffered by the agency was a pretext for discrimination. Id. at 256.
However, the ultimate burden of persuading the trier of fact that the
agency intentionally discriminated against complainant remains at all
times with complainant. Reeves, 530 U.S. at 143. Furthermore, it is
well established that when a complainant alleges disparate treatment
in violation of the ADEA, �liability depends on whether the protected
trait (under the ADEA, age) actually motivated the employer's decision.�
Id. at 141 (quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)).
�That is, the plaintiff's age must have actually played a role in [the
employer's decisionmaking] process and had a determinative influence
on the outcome.� Id. (citation and internal punctuation omitted)
(alteration in original).
After a thorough examination of the evidence on appeal, it is the decision
of the Commission to affirm the agency's finding that complainant has
failed to establish that he was subjected to unlawful discrimination
as claimed. The record evidence shows that, even assuming for the sake
of this appeal complainant established a prima facie case of race and/or
age discrimination as to each of his claims, the agency articulated
a legitimate, nondiscriminatory reason for each of the complained-of
actions, as described above, which complainant failed to prove were mere
pretext for unlawful discrimination. We note that the record evidence
shows that the complained-of agency actions were made in response to
complainant's inappropriate conduct in the workplace, and there is no
indication that the agency actions at issue were in any way the result of
an unlawful animus held by the agency against complainant's race or age.
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, it is the decision of the
Commission to AFFIRM the FAD.
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
March 27, 2003
Date