0120091607
08-07-2009
John W. Gilman, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (United States Marshal Service), Agency.
John W. Gilman,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
(United States Marshal Service),
Agency.
Appeal No. 0120091607
Agency No. M07-0009
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's January 30, 2009 final decision concerning his equal employment opportunity (EEO) complaint claiming 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.
During the period at issue, complainant was employed as a Deputy United States Marshal (DUSM), GS-1811-12 at the agency's District of Hawaii in Honolulu, Hawaii.
On January 18, 2007, complainant filed the instant formal complaint. Therein, complainant alleged that the agency discriminated against him on the basis of race (white) when:
in October 2006, he was reassigned out of the Direct of Hawaii's Operations Section to the Joint Terrorism Task Force (JTTF) Pacific at the local FBI office.
During his tenure with the District, complainant served three extended active duty deployments as a Commander in the Navy Reserves from June 2002 to March 2003, from October 2005 to July 2006 and from November 2006 to May 2007. On September 20, 2006, complainant was notified by the Deputy Chief (DC) that he was going to be assigned back to JTTF if he were not deployed on October 1, 2006. On October 5, 2006, DC directed complainant to report back to his collateral duty assignment with the JTTF effective October 10, 2006. The record reflects that complainant assigned to the JTTF until November 6, 2006 when he was activated for a 179-day military duty tour.
At the conclusion of the investigation, complainant was provided with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with complainant's request, the agency issued a final decision on January 30, 2009, pursuant to 29 C.F.R. � 1614.110(b).
In its January 30, 2009 final decision, the agency found no discrimination. Specifically, the agency determined that because complainant experienced no materially adverse change in the terms and conditions of his employment as a result of the JTTF assignment, the record does not establish an inference of race discrimination. The agency further determined that even assuming complainant suffered an adverse employment action and that the record establishes an inference of discrimination, there was no evidence in the record showing that complainant was reassigned because of his race.
DC stated that on September 19 and 20, 2006, he sent complainant two emails advising him that if he was not deployed on or by October 1, 2006, he would be reassigned back to his previous assignment on the JTTF. DC stated that he wanted to let complainant "know that there was a strong possibility that he was going to be reassigned back to JTTF, and with that being said, there was some new instructions out of Washington about polygraphs with the JTTF, I wanted him to know in advance that he didn't have to take [a] polygraph if they were going to try to make him, and I sent him that email on the 19th of September." Specifically, DC stated that it was his decision to reassign complainant to the JTTF in consultation with complainant's third level supervisor. DC stated that his decision to reassign complainant was based on a verbal directive "from the Marshals Service headquarters, the Department of Justice, and Homeland Security initiatives for Hawaii. And Hawaii is a central location in the Pacific, and it's a getaway port from Asia, and we needed somebody there on the JTTF, and [complainant] had told me he had an interest in intelligence, he had a top-secret clearance, he's very smart or he appeared to be, and he did a good job over there, so he was assigned over there, initially, and then upon his return, we were going to reassign him back over there. It was in the best interest of our office and the Marshals Service at that particular time."
Further, DC stated that complainant maintained the same series and grade and pay level when he was reassigned to the JTTF. DC acknowledged that complainant was unhappy about the reassignment. Specifically, DC stated that he was trying "to keep a good workforce, but we still had to have a person on the JTTF. [Complainant] was the only one that could fill it, but I also knew that he was unhappy going over there and he didn't want to go over there." DC stated that during the relevant time, complainant was the only one in the office that had a top secret clearance. DC stated that complainant "felt that he could sit there and tell me, the Chief Deputy in the district, that he is not going to do this or he's not going to do that. Well, it doesn't work that way in the Marshals Service, it doesn't work that way in the military, and it doesn't work that way in life. If you are a subordinate, you have to follow the rules and instructions of the superior if they're within the proper operational or employment, or if it's not prohibited personnel practice. He has to comply with it and he didn't like it." DC stated that complainant was only assigned to the JTTF from October 10, 2006 until November 6, 2006 when he was activated for a 179-day military duty tour. Moreover, DC stated that complainant's race was not a factor in his determination to reassign him to the JTTF.
With respect to complainant's argument that DC decided to reassign him after he got into a dispute with a co-worker (C1) on October 4, 2006 concerning the release of a prisoner to state custody, DC denied this charge. DC stated "no, it played no role whatsoever and the record reflects that." DC further stated that he informed complainant that he would be reassigned to the JTTF on September 20, 2006, nearly two weeks prior to complainant's October 4, 2006 incident with C1.
Complainant's first-level supervisor (S1) stated that complainant indicated to him that he did not want to be reassigned to the JTTF. Specifically, S1 stated that complainant "indicated that he did not feel comfortable going back and he didn't want to go back. He indicated that the personnel there had changed since he had been there, that the management is different, that the FBI is more micro-managing, and that FBI agents are having to respond to so many emails and things of that short, and then he indicated to me that he really didn't want to go back." S1 stated that complainant also mentioned to him that he did not want to take a polygraph test. S1 stated that he shared complainant's concerns with management and that complainant "was instructed that he was not going to need to take a polygraph, that he would report there, and that U.S. Marshals headquarters is looking into the matter, but he would never be instructed or subjected to a polygraph against his will."
With respect to complainant's argument that DC decided to reassign him to JTTF after he got into a dispute with a co-worker on October 4, 2006, concerning the release of a prisoner to state custody, S1 stated "absolutely not." S1 further stated "one, I don't know what happened because that's an operational matter and what may have transpired between [complainant] and [C1], I don't know because that's not under my jurisdiction, that's under [a named Supervisory Deputy], but as far as his reassignment to JTTF and again, maybe I shouldn't use the word 'reassignment', as it wasn't reassigned, he was assigned to return back to JTTF."
The United States Marshal (USM) for the District of Hawaii, also complainant's third level supervisor, stated that he was the concurring official concerning complainant's reassignment to the JTTF. USM stated that complainant was placed to the JTTF "not only because of his experience, his competency, and his qualifications, but also prior to his deployment, he requested from [S1] that when he comes back, he go back to the JTTF." USM stated after complainant complained to him about his reassignment to the JTTF in October 2006, he told complainant "I would speak with the management team about it, but we felt it would be best for the Marshals Service and the district, as well as Hawaii law enforcement that somebody of his experience, qualifications, and competency represented our office, our Agency, at the JTTF, but it was also made clear that once we could find somebody else who fit that mold, he would be replaced."
With respect to complainant's argument that on October 4, 2006, he witnessed C1 entering the Supervisor Deputy (SD)'s office to speak with SD and USM regarding her concerns about him, USM acknowledged he was in SD's office that day. USM stated "I don't think you could call it a meeting. It was more of an informal discussion." USM further stated that C1 was in the office "for some time, but not the entire time that I was with [SD]." USM stated that C1 "was kind of disturbed, but didn't want to make any formal complaint towards some comments that was made to her by [complainant], but she wasn't the only one that heard it." USM stated that he does not recall C1 asking him or SD to take action against complainant. Specifically, USM stated "I don't recall her asking us to take any action against [complainant], no. I think what she may have said is that, 'I just want to be left alone' or something that that effect."
On appeal, complainant contends that the agency's final decision "is indicative of a cursory review at best of the case." Complainant further argues that the statements made by management officials stating that he had a desire to return to the JTTF were not true. Complainant states "I did not enjoy working at JTTF, as [S1] states, as I wanted out from a very early time after being assigned financial analysis cases for which I have no background and being approached about applying for an Intelligence Analyst (IA) position, in which I have no interest whatsoever and which would involve a significant cut in pay and retirement as well as a delay in retirement...[S1's] attempt to focus on the polygraph requirement as my reason for not wanting to return to the JTTF following my return to work following my first deployment to Afghanistan is not credible as this requirement was announced long before my departure in October of 2005 and I had already decided against taking one." Furthermore, complainant argues that the JTTF is not a collateral duty assignment "as it requires full-time participation and I was removed from the USMS office to work in the FBI office so management could accommodate [C1]."
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that the agency articulated legitimate, nondiscriminatory reasons for its actions. Complainant has not demonstrated that these reasons were a pretext for discrimination.
We have considered complainant's appellate arguments, and have expressly addressed various arguments that were raised by him in regard to the subject action, as reflected in our above discussion. The Commission determines, however, that complainant has not provided any persuasive argument regarding the propriety of the agency's finding of no discrimination.
Therefore, after a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's final decision because the preponderance of the record evidence does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
August 7, 2009
__________________
Date
2
0120091607
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120091607
8
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