0520130038
03-19-2013
Jimmy Walker, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Jimmy Walker,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Request No. 0520130038
Appeal No. 0120122160
Agency No. ARSTEWART11FEB00919
DENIAL
Complainant timely requested reconsideration of the decision in Jimmy Walker v. Department of the Army, EEOC Appeal No. 0120122160 (September 20, 2012). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
Complainant alleged that the Agency discriminated against him on the bases of race (African-American) and sex (male) when: 1. from September 1, 2010 through January 31, 2011, the Hospital Commander, directed courses of action designed to create a basis to replace him as the Chief of the PTMS Division; 2. on January 31, 2011, his supervisor, the Lieutenant Colonel [LTC] issued an Official Written Reprimand (OWR) for "rude and courteous behavior" to him; and 3. on January 31, 2011, he received an annual performance evaluation for the rating period October 1, 2009 to September 30. 2010. In part IV, section "a" of the evaluation, LTC rated him as "Needs Improvement on one or More Objectives," and in part VII, his senior rater, [COL], rated him "Level 4" or "Fair."
The Agency issued a final agency decision (FAD) finding no discrimination. With regard to claim 1, management maintained that Complainant's behavior was discussed as a result of his treatment of a female coworker and his subordinates. It was noted that Complainant did not showing respect to female colleagues, failed to communicate effectively with his subordinates, failed to take action with regard to recommendations by the Environment Care Committee, failed to use some employees, and Complainant presented data in the morning reports without analysis. An investigation concluded that Complainant had demonstrated a lack of leadership and failed to communicate adequately with his subordinates which created an adverse command climate. As a result, Complainant was given a letter of reprimand, a Level 4 performance appraisal, and was reassigned to non-supervisory duties. Moreover, management explained that Complainant's reassignment to a non-supervisory position was appropriate as Complainant's employees expressed their lack of trust in Complainant as their supervisor.
With regard to claim 2, management indicated that Complainant was issued an OWR for rude and discourteous behavior in the workplace. An investigation found his behavior to be egregious and disruptive to the work environment, and his treatment of subordinates had created an environment of mistrust and disrespect. Regarding claim 3, management indicated that Complainant was rated "Needs Improvement on one or More Objectives" in part IV, because he was not able to meet his supervisory objective which was the most important objective. The Commission affirmed the finding of no discrimination. The Commission found that Complainant failed to show that the Agency's articulated, legitimate, nondiscriminatory, reasons were pretext for discrimination.
CONTENTIONS ON REQUEST FOR RECONSIDERATION
In his request for reconsideration, Complainant contends that race was a factor in the Agency's decision as management treated employees differently based on race. Complainant contends however, that the data needed to prove this point is not a part of the record and therefore a proper analysis of whether the situation was discriminatory or just bad decision making by management cannot be determined. Complainant also contends that he was not counseled regarding his poor performance, his performance was not reflected on his annual ratings, and he was told that he would be given the opportunity to improve but was not. Complainant identifies a white, female, supervisor who after numerous counselings for poor performance and conduct was given the opportunity to improve. Complainant maintains that he was falsely accused by the female employee and based on her false allegations management acted against him and made a poor and/or illogical business decision.
In response, the Agency asks that Complainant's request be denied. The Agency argues that other than Complainant's conclusory statements he has provided no evidence which shows that the Agency's articulated legitimate, nondiscriminatory reasons were pretext for discrimination.
ANALYSIS AND FINDINGS
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to deny the request. We find that Complainant failed to show that the appellate decision involved a clearly erroneous interpretation of material fact or law, or that the appellate decision will have a substantial impact on the policies, practices, or operations of the agency. We find that even if we assume arguendo that Complainant established a prima facie case of discrimination as to all bases, the appellate decision correctly found that the Agency articulated legitimate, nondiscriminatory reasons for its actions - namely - that the incidents in claims 1, 2, and 3, were due to Complainant's rude behavior toward his subordinates, and chain of command, a claim that Complainant does not deny. With regard to Complainant's arguments in his request for reconsideration, where he argues that a white female supervisor was treated more favorably and was given an opportunity to improve her management style, Complainant fails to demonstrate that they were similarly situated as he has not shown that the coworker was rude toward her supervisor as was noted with Complainant. We find that many of Complainant's arguments in his request for reconsideration were previously addressed in the appellate decision or are conclusory and do not demonstrate that the appellate decision erred. Accordingly, the decision in EEOC Appeal No. 0120122160 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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
with the Court 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
____3/19/13______________
Date
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0520130038
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520130038