0120100780
08-12-2011
Marcus R. Walls, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Marcus R. Walls,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 0120100780
Hearing No. 450-2008-00350X
Agency No. DLAN-08-0706
DECISION
Complainant filed an appeal with this Commission concerning his complaint
of unlawful employment discrimination. For the reasons set forth,
we AFFIRM the Agency’s decision, finding no discrimination.
BACKGROUND
The record reveals that, during the relevant time, Complainant was
employed as a Heavy Mobile Equipment Operator at the Agency’s
Distributions/Materials Movement Branch, Major End Items Division,
Defense Distribution Depot Red River in Texarkana, Texas. Report of
Investigation (ROI), at 1 and 2. Complainant sought EEO counseling and
subsequently filed a formal complaint.
Complainant alleges that he was subjected to discrimination on the basis
of reprisal for prior protected EEO activity when:
1. On November 19, 2007, Complainant discovered that he was not selected
for the position of Crane Operator, WG-5725-11, advertised under Vacancy
Announcement Number DDC-07-3264.
2. On November 19, 2007, Complainant’s privacy was violated when he
overheard his supervisor tell a co-worker (co-worker A) that Complainant
was going to file an EEO complaint. 1
At the conclusion of the investigation, Complainant received a copy of
the investigative report. Additionally, the Agency informed Complainant
of his right to request a hearing before an AJ, or alternatively, to
receive a final decision from the Agency.
Complainant requested a hearing before an AJ. Following a hearing,
the AJ issued a decision on September 15, 2009, finding that Complainant
had not been discriminated against. Specifically, the AJ found that the
Agency presented legitimate, nondiscriminatory reasons for its actions,
which Complainant failed to rebut.
On November 4, 2009, the Agency issued a final order adopting the AJ’s
decision. Thereafter, Complainant filed the instant appeal.
On appeal, Complainant contended that the AJ’s credibility
determinations were inconsistent with the facts and testimony
presented in the case. Complainant also contended that the AJ erred
when she determined that Complainant did not state a prima facie case
of reprisal with respect to both issues presented. Complainant argued
that he believes that he was the victim of retaliation due to his prior
protected activity, and that he has proven his case by successfully
demonstrating pretext on the part of his supervisors. Complainant
respectfully requested that the Commission review the record in its
entirety, vacate the Agency’s final order, and reverse the Agency’s
final order, finding discrimination as alleged. Complainant further
requested for “make whole” relief in accordance with applicable law.
Complainant’s Appeal, at 1 and 2.
In response to Complainant’s appeal, the Agency argued that the
AJ correctly found that Complainant failed to establish a prima
facie case. The Agency argued that the AJ analyzed the reasons
offered for the selection made. The Agency asserted that Complainant
did not establish any basis to overturn the decision of the AJ.
The Agency stated that Complainant was earlier promoted following his
participation in the EEO process. The Agency articulated that the
fact that Complainant was not selected for this promotion does not show
reprisal discrimination. Agency’s Response to Complainant’s Appeal,
at 1 through 3.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,
477 (1951) (citation omitted). A finding regarding whether or not
discriminatory intent existed is a factual finding. See Pullman-Standard
Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law
are subject to a de novo standard of review, whether or not a hearing
was held.
Upon review, we find that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. Regarding claim 1, the Branch
Chief, the Selecting Official, stated that, with regard to Complainant’s
previous protected EEO activity, he had heard “by word of mouth” from
other employees that Complainant had filed a grievance in about 2004,
and Complainant was assigned to the Warehouse Division at that time.
The Branch Chief said that, even now, he does not know the reason for
that grievance, and that any previous EEO activity had no bearing on
whom he selected as the Crane Operator. The Branch Chief argued that he
followed the merit promotion principals and made his selection from the
certificate of eligible candidates he was provided. ROI, at Exhibit F-13.
The Branch Chief asserted that he interviewed the candidates, made his
recommendation for selection, and forwarded his recommendation up the
chain of command. The Branch Chief said that the Division Chief and
the Deputy Commander reviewed and approved his recommendation before he
forwarded it to the Agency’s Human Resources. ROI, at Exhibit F-13.
The Branch Chief described his selection process as reviewing the
applications, asking all the candidates the same interview questions,
and recording their responses. The Branch Chief stated that, in addition
to interview performance, he also based his decision on his observations
of each candidate’s work ethic, attitude, and how well the candidate
worked with other employees. ROI, at Exhibit F-13.
The Branch Chief asserted that the selectee was a better person for
the job than Complainant. The Branch Chief argued that Complainant
was not lacking in any area, and he was probably fully qualified.
The Branch Chief claimed that the selectee set himself apart from the
other candidates by his responses to the interview questions, his work
ethic, and his ability to get along with anyone on the job. ROI, at
Exhibit F-13.
The Branch Chief stated that Complainant had more experience with
the overhead Gantry crane, but no experience with the mobile crane.
The Branch Chief said that the selectee had experience with the mobile
crane, and he thought that the selectee would be able to learn to use
the Gantry crane in short period of time. ROI, at Exhibit F-13.
As to claim 2, the Branch Chief recalled that, as Complainant was in the
hallway searching for the telephone number for the EEO Office, co-worker
A entered the Branch Chief’s office and asked if a selection had been
made for the Crane Operator position. The Branch Chief asserted that
he may have said to co-worker A that Complainant was going to file an
EEO complaint. The Branch Chief argued that he was not certain if he
mentioned Complainant’s name when he made the remark, or if he said
that “someone” was going to file an EEO complaint. The Branch Chief
admitted that, if he did state Complainant’s name, he would have been
wrong to do so. The Branch Chief claimed that it was well known by
most employees that Complainant was going to file an EEO complaint if
he was not selected. The Branch Chief admitted that, as a supervisor,
he should not have said anything about what Complainant was considering
to do in respect to filing an EEO complaint. ROI, at Exhibit F-13.
The Branch Chief stated that he did not make the comment in order
to retaliate against Complainant for his EEO or protected activity.
The Branch Chief said that he apologized to Complainant for violating
his privacy, but did not know if Complainant accepted his apology. ROI,
at Exhibit F-13.
The Commission finds that Complainant failed to rebut the Agency's
articulated legitimate, nondiscriminatory reasons for its actions.
Additionally, the Commission finds that Complainant failed to show
that his qualifications for the Crane Operator position were plainly
superior to the selectee’s qualifications or that the Agency’s actions
were motivated by discrimination. Moreover, the Commission finds that
Complainant has failed to show by a preponderance of the evidence that he
was subjected to discrimination on the basis of reprisal. Furthermore,
the Commission finds that the AJ’s decision is supported by substantial
evidence in the record.
CONCLUSION
The Agency’s 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
August 12, 2011
__________________
Date
1 The record reflects that the Agency Investigator and the EEOC
Administrative Judge (AJ) inadvertently identified the alleged
discriminatory date for claims 1 & 2 as November 29, 2007, instead of
November 19, 2007.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120100780
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120100780