0120112406
03-23-2012
John D. Garvey, Complainant, v. Martha N. Johnson, Administrator, General Services Administration, Agency.
John D. Garvey,
Complainant,
v.
Martha N. Johnson,
Administrator,
General Services Administration,
Agency.
Appeal No. 0120112406
Agency No. 09-R9-PBS-SF-10
DECISION
Complainant appeals to the Commission from the Agency’s final decision
dated February 18, 2011, finding no discrimination. For the following
reasons, we AFFIRM the Agency’s final decision.
BACKGROUND
In his complaint, Complainant, a Program Analyst, Client Solutions
Division, GS-12, alleged discrimination in reprisal for prior EEO activity
when on February 27, 2009, he became aware of discriminatory remarks made
about him on August 24, 2006. Specifically, Complainant claimed that
during a management meeting, an Agency manager said, he was “an EEO
high-risk individual.” Complainant also claimed that the foregoing
remark negatively influenced the opinion of other managers against him
and as a result, he was not promoted to a GS-13 Program Analyst position
in May 2008.
The record indicates that the Agency previously dismissed the instant
complaint for failure to state a claim. Upon Complainant’s appeal,
the Commission, in EEOC Appeal No. 0120093550 (February 19, 2010),
reversed the Agency’s decision and remanded the complaint back for
further processing. Accordingly, the Agency investigated the complaint
and subsequently, Complainant requested a final Agency decision without
a hearing. The Agency thus issued its final Agency decision concluding
that it asserted legitimate, nondiscriminatory reasons for its action,
which Complainant failed to rebut.
ANALYSIS AND FINDINGS
After a review of the record, assuming arguendo that Complainant had
established a prima facie case of discrimination, we find that the
Agency has articulated legitimate, nondiscriminatory reasons for the
alleged incidents. Complainant’s second level supervisor indicated
that she was not aware of the alleged remark purportedly made by the
identified manager. The record clearly indicates that the second
level supervisor was not present at the time the remark was made.
There is no persuasive evidence in the record indicating that the
second level supervisor was aware of the alleged remark. The second
level supervisor stated that in May 2008, she laterally transferred an
identified employee from an Accountant Manager, GS-13 position in the
Account Management Branch to a vacant Program Manager, GS-13 position
in the Program Support Branch. The second level supervisor indicated
that she made this decision due to increasing workload demands in the
branch and because the identified employee made a request to move from
her position in the Account Management branch for her health reasons.
Upon review, we find that Complainant failed to provide any evidence
to show that the Agency’s articulated reasons for the alleged action
was a pretext for discrimination. Based on the foregoing, we find that
Complainant has failed to show that the Agency’s action was motivated
by discrimination as he alleged.
CONCLUSION
Accordingly, the Agency’s final decision finding no discrimination
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (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
3/23/12
__________________
Date
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0120112406
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112406