01974171
02-07-2000
Johnny Wiley, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Johnny Wiley v. Department of the Air Force
01974171
February 7, 2000
Johnny Wiley, )
Complainant, )
) Appeal No. 01974171
v. ) Agency No. T0466TXF0796R
)
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency decision
concerning his complaint of unlawful employment discrimination on the
basis of race (African American) in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.<1> The appeal
is accepted in accordance with EEOC Order No. 960.001. For the following
reasons, the agency's decision is
AFFIRMED.
ISSUE PRESENTED
The issue presented herein is whether complainant has established that
he was discriminated against on the above-referenced basis when, on
March 7, 1996, he received a Management Directive Reassignment (MDR)
from the GS-11 position of Supervisory Engineering Technician to the
GS-11 position of Engineering Technician.
BACKGROUND
Complainant, an Engineering Technician, filed a formal complaint on
May 15, 1996, in which he raised what has been identified as the issue
presented.<2> The agency accepted the complaint for processing and,
at the conclusion of its investigation, issued a final decision finding
no discrimination. This appeal followed.
The evidence in the investigative file reveals that, in 1994, complainant
was promoted from the position of Engineering Technician (GS-10) to the
position of Supervisory Engineering Technician (GS-11). In a memorandum
(i.e., the MDR), dated April 25, 1996, complainant was informed that he
would be reassigned to his former position effective May 26, 1996 because
the agency believed that his computer knowledge would be better utilized
in the Engineering position. The reassignment did not adversely affect
his salary.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973). 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.
McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the 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.
Although the initial inquiry in a discrimination case usually focuses
on whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated a
legitimate, nondiscriminatory reason for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the complainant has
established a prima facie case to whether he has demonstrated by
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
In this case, the Commission finds that the agency has articulated a
legitimate, nondiscriminatory reason for its actions. Specifically,
the agency contends that complainant was reassigned because, as the MDR
stated, it was believed that his computer skills would be better utilized
in his former position.
Because the agency has proffered a legitimate, nondiscriminatory
reason for the alleged discriminatory events, complainant now bears
the burden of establishing that the agency's stated reason is merely a
pretext for discrimination. Shapiro v. Social Security Administration,
EEOC Request No. 05960403 (December 6, 1996). Complainant can do this
by showing that the agency was motivated by a discriminatory reason.
Id. (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)).
In attempting to meet his burden, complainant submitted a memorandum,
dated March 6, 1996, which indicates that his commander, one of the
alleged discriminating officials in this case, recommended that he
(complainant) be removed as Supervisor Engineering Technician because
his performance in that position was below standards and created several
significant problems for the unit. This memorandum, however, does
not make mention of complainant's computer skills. When asked by the
investigator to elaborate on these significant problems, the commander
and the lieutenant, the other alleged discriminating official, pointed
to two things: (1) a general lack of communication skills which led to
conflict amongst other employees<3>; and (2) two incidents involving
complainant and one of his subordinates, a White female technician
(WFT).<4> These two incidents caused the WFT to file a union complaint
against complainant. Regarding the former, the charges of communication
deficiencies were not previously documented, nor is there evidence which
suggests that complainant was counseled in this area. Consequently,
the Commission finds that complainant's reassignment was based solely on
the latter, i.e., the two incidents with the WFT. So, while complainant
has succeeded in proving that the agency's stated reason is false,
the Commission is not persuaded that the true reason is grounded in
employment discrimination.
Complainant also contends that race was a factor because, before he
was selected to fill the Supervisory Engineering Technician vacancy,
a White male, notwithstanding his marginal performance in another unit,
was chosen for that position but declined the offer after being selected
for another position.<5> Complainant believes that this constituted
racism because he, not the White person originally selected, had been
performing the supervisory duties while the position was vacant, and
therefore was clearly more qualified. Since the selection process,
by complainant's own admission, is not an issue here, we decline to
discuss the matter herein.
CONCLUSION
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, we AFFIRM the final agency
decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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. 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 (S1199)
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:
February 7, 2000 Carlton M. Hadden,
DATE Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
________________________
________________________
1 On November 9, 1999, revised regulations governing the
EEOC's federal sector complaint process went into effect. These regulations
apply to all Federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable,
in deciding the present appeal. The regulations, as amended, may also be
found at the Commission's website at WWW.EEOC.GOV.
2 This complaint contained another issue which was dismissed by the agency
in an earlier decision. Pursuant to 29 C.F.R. �1614.401, complainant
appealed the agency's dismissal. That appeal is not addressed in this
decision.
3 Several other witnesses testified that complainant had a problem
communicating effectively.
4 The first incident was a verbal altercation in which complainant allegedly
intimidated the WFT by shouting, shaking, and being almost out of control.
The second incident involved a verbal conflict between the WFT and another
employee. As the supervisor of the two employees, complainant privately
addressed their behavior. According to the commander and the lieutenant,
complainant's conduct in the first incident was inappropriate. As such,
he (complainant) was counseled and required to attend a class on supervision.
For the second incident, complainant was issued a letter of reprimand because
the lieutenant did not believe that he (complainant) exercised sound
judgment in counseling the two employees.
5 Complainant was selected for the position after the White male declined to
take the job.