Johnny Wiley, Complainant,v.F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionFeb 7, 2000
01974171 (E.E.O.C. Feb. 7, 2000)

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.