01a52048
01-27-2006
Jerry W. Jones, Jr., Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
Jerry W. Jones, Jr. v. Department of the Treasury
01A52048
January 27, 2006
.
Jerry W. Jones, Jr.,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A52048
Agency No. TD 99-1333
Hearing No. 100-2002-7135X
DECISION
Complainant initiated an appeal from the agency's final order concerning
his equal employment opportunity (EEO) 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.
The record reveals that complainant, a Program Manager, GS-0301-14 at the
agency's Bureau of Engraving and Printing (BEP) facility in Washington,
D.C., filed a formal EEO complaint on September 10, 1999<1>, alleging
that the agency discriminated against him on the bases of race (Black),
color (black), and in reprisal for prior EEO activity when:
On October 14, 1998, management denied complainant a detail to the
position of Chief, Production and Inventory Management;
On March 19, 1999, complainant was informed that it was not appropriate
to use the title �Dr.� since it did not relate to complainant's position;
In March 1999, management directed complainant's supervisor to place
complainant on a Performance Improvement Plan (PIP);
From January 1990 through May 7, 1999, management continually reassigned
complainant from position to position;
On May 7, 1999, management failed to provide complainant with a position
description and performance plan for the position of Program Manager,
BEP Cleaning Program;
On May 7, 1999, management identified complainant's title of Manager
with a small �m�;
On May 10, 1999, complainant was not selected for the position of
Program Manager, Chief of Production and Inventory Management, GS-301-15,
under Vacancy Announcement Number 99-0051-VMS;
In November 1999, management failed to provide complainant with a
Mid-year Evaluation;
On November 17, 1999, complainant's position was reassigned to the
Office of Production Support;
On November 22, 1999, complainant received a Mid-year Performance Review
without having a position description or performance standards in place;
In April 2000, complainant was not selected for the position of Quality
Assurance Specialist, GS-1910-15, under Vacancy Announcement Number
2000-032-AJC;
On August 17, 2000, complainant was assigned a detail to the Combined
Federal Campaign (CFC) for an extended period through February 5, 2001;
On September 26, 2000, complainant was reassigned to the Office of
Research and Technical Support, effective October 1, 2000; and
Complainant's request to attend a Federal Dispute Resolution conference
in August 2002, was denied.<2>
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). On April 4, 2004, the AJ issued a Partial
Dismissal and Order in which complainant's allegations regarding details
and reassignments that occurred before April 25, 1999, were dismissed
for untimely EEO Counselor contact (claim 1 and a portion of claim 4).
On July 26, 2004, the agency submitted a Motion for Summary Judgment,
(Motion) to which complainant responded on September 7, 2004. The AJ
issued a decision, dated November 9, 2004, without a hearing, granting
the agency's motion and finding no discrimination.
The AJ concluded that complainant failed to submit sufficient evidence of
pretext, from which it could be concluded that complainant was subjected
to disparate treatment because of his race, color or in reprisal for
prior EEO activity. Additionally, the AJ found no competent evidence
relating any of complainant's protected classes to the incidents of
harassment described by complainant, which, the AJ found, also do not
rise to the level of severe and pervasive harassment. Accordingly,
the AJ found that no discrimination occurred.
The agency's final order implemented the AJ's decision.
On appeal, complainant contends that the AJ erred when he granted
the agency's motion for a decision without a hearing. Complainant
contends that numerous issues of material fact remain, such that in
making his decision, the AJ was required to weigh evidence and make
credibility determinations, which renders a decision by summary judgment
inappropriate.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Dismissal of untimely claims (claim 1 and a portion of claim 4)
The Commission notes that complainant does not challenge the AJ's
dismissal of claims involving details and reassignments that occurred
before April 25, 1999 (except insofar as they provide background evidence
to support complainant's harassment claim), and accordingly, we find the
dismissal of claim 1 and the portion of claim 4 including pre-April 25,
1999 reassignments, to be proper pursuant to 29 C.F.R. � 1614.107(a)(2).
Harassment (claims 2, 3, 6, 8, and 10)
We find that taking complainant's account of the incidents in claims
2 (use of the title �Dr.�); 3 (proposed placing complainant on a
PIP/discipline); 6 (complainant's position identified in a memo with a
small �m�); 8 (failed to provide a mid-year evaluation); and 10 (issued a
mid-year performance review), and considering the incidents either alone
or in light of complainant's overall claim of harassment, that complainant
failed to describe conduct sufficiently severe or pervasive to establish
a claim of harassment based on race, color or reprisal under Title VII.
No evidence shows that complainant received any discipline or was
actually placed on a PIP; nor did complainant receive an undesirable
performance evaluation, or suffer any other harm as a result of the
conduct complainant described. We find that complainant failed to show
that even if the harassment did constitute a hostile working environment
such agency actions were motivated by discrimination.
Reassignment (BEP Cleaning Program (a portion of claim 4)
The timely portion of claim 4, concerns complainant's reassignment
to the position of Manager, BEP Cleaning Program which was effective
on May 10, 1999. The record indicates that all other Technology
Directorate employees (24 employees, including complainant, in total)
were also reassigned at the same time as complainant. The agency
asserted that these reassignments were made in an effort to �provide
professional development opportunities� and to �address the needs for
cross-training in certain critical areas.� Complainant has not identified
any similarly situated employees, not in his protected classes, who
received preferential treatment. The Commission finds that complainant
failed to provide evidence showing that his reassignment was motivated
by discrimination.
Position Description/Performance Standards (claim 5)
The agency argues that complainant was not the only employee in a
newly created position that did not have a position description nor a
performance plan. We find the parties do not dispute that complainant did
not have a position description nor a performance plan when he was newly
reassigned in May 1999. We also find no dispute that complainant was
not the only employee without such items after the agency's realignment
that month, for the reason that the position did not previously exist.
We concur with the AJ and the agency that summary judgment was appropriate
for this claim and that complainant failed to provide any evidence
indicating that discrimination occurred in claim 5.
Non-selection - Program Manager, Chief of Production and Inventory
Management (claim 7)
The agency found that complainant was not included on the certificate
of eligible candidates and that therefore the selecting official did not
have the opportunity to select him. Whether the selecting official was
aware of complainant's prior EEO activity (as complainant argues he was)
is immaterial, because the selecting official could not have selected
complainant from a list that did not include his name. We find that
complainant has not alleged nor produced any evidence to show that the
panel's decision was somehow unduly influenced by the selecting official;
nor has complainant shown that his qualifications for the position were
plainly superior to those of the selectee. We find no dispute exists
regarding the material facts pertaining to claim (7) and we find that
summary judgment for the agency was appropriate.
Position reassignment to the Office of Production Support (claim 9)
The parties do not dispute that complainant's position was reassigned
to the Office of Production Support. Further, complainant does not
dispute that many employees were affected by the realignment and that
complainant's position was placed under a more appropriate department as
M1 stated in her affidavit, and as the agency explained in its motion for
summary judgment. As the agency noted, complainant has not identified
any similarly situated employees who received preferential treatment.
Accordingly, summary judgment is appropriate and the AJ's determination
that no discrimination occurred was proper.
Non-selection (Quality Assurance Specialist) (claim 11)
The record shows that complainant and the selectee were both placed on
the list of best qualified applicants and that both were interviewed
for the position of Quality Assurance Specialist, Vacancy Announcement
Number 2000-032-AJC. The agency states that the selectee was chosen
because his qualifications (certified quality engineer, ISO Lead Auditor
training and in-depth technical knowledge of statistical quality assurance
techniques) were superior to complainant's qualifications. We find that
complainant has not produced any evidence to show that his qualifications
for the position were plainly superior to those of the selectee. We find
nothing in the record indicates that the agency's articulated reasons
are unworthy of belief or that discrimination was the real reason that
complainant was not selected. We find no dispute exists regarding the
material facts pertaining to claim 11 and that summary judgment finding
no discrimination was appropriate.
CFC Detail (claim 12)
Neither party disputes that complainant was detailed to the Combined
Federal Campaign (CFC) in August 2000, where he continued to serve until
February 5, 2001. The agency claims that Treasury officials specifically
requested complainant for this detail apparently because of his prior
excellent performance in a prior CFC detail. The agency inquired whether
complainant was interested in the detail and he gave positive responses
to the inquiry. There is no indication that the detail was motivated
by discrimination. The AJ's decision to grant the agency's motion for
summary judgment was appropriate.
Reassignment to Office of Research and Technical Support (claim 13)
In its Motion and again, in its statement on appeal, the agency states
that complainant was reassigned, effective October 1, 2000, to the Office
of Research and Technical Support for three reasons: so that complainant
would enjoy a more prestigious position, because his background in quality
assurance and procedural knowledge was needed in that office, and because
complainant disliked his position as Manager of the BEP Cleaning Program.
We find the material facts are not in dispute regarding this claim.
Complainant does not dispute that he disliked his position as the
Manager of the BEP Cleaning Program and that he considered it demeaning.
Therefore, reassignment to another position in keeping with his knowledge,
skills and abilities, would presumably be more prestigious. The evidence
shows that complainant possessed qualifications, as the agency noted,
such that he was considered among the best qualified applicants for
the earlier vacancy announcement in the area of quality assurance.
Accordingly, we find, drawing all inferences in complainant's favor,
that summary judgment was appropriate with respect to claim 13 and that
the agency's finding of no discrimination is appropriate.
Federal Dispute Resolution Conference<3> (claim 14)
The agency asserted that complainant's official position is not within
the agency's ADR office, that the conference was not essential for
performance of complainant's official duties, and that no employees within
complainant's directorate attended this conference. Complainant has
not shown how any similarly situated individual was treated differently
or how the agency action was motivated by discrimination. Accordingly,
we find that summary judgment was appropriate with respect to claim 14
and that the agency's finding of no discrimination is appropriate.
CONCLUSION
The agency's decision dismissing a portion of the complaint and finding
no discrimination for the remainder of the complaint is AFFIRMED.
.
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
January 27, 2006
__________________
Date
1Complainant's complaint was later amended
to include claims (9) - (14) herein.
2The enumeration and phrasing of complainant's claims varies slightly
throughout the record. We have attempted to clarify complainant's claims
and will refer to the claims by the numbers used herein.
3In the record on appeal this conference is also called the ADR or
Alternative Dispute Resolution conference.