01a62241
09-08-2006
Roland Patrick, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Roland Patrick,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 01A62241
Hearing No. 310-2005-00077X
Agency No. JQ-04-022
DECISION
On January 24, 2006, complainant filed an appeal from the agency's
December 23, 2005 final decision concerning his equal employment
opportunity (EEO) complaint alleging 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
For the following reasons, the Commission AFFIRMS the agency's final
decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Materials Handler in Tinker Air Force Base in Oklahoma. Complainant
contacted an EEO Counselor and filed a formal EEO complaint on February
27, 2004, alleging that he was discriminated against on the bases of
race (African-American), sex (male), age (48), and in reprisal for prior
protected EEO activity under Title VII of the Civil Rights Act of 1964
the Age Discrimination in Employment Act of 1967 when on:
February 19, 2004, complainant was required to undergo an unannounced
test for illegal drug use.
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). Complainant
requested a hearing but the AJ denied the hearing request on the grounds
that complainant failed to respond to the agency's discovery requests.
The AJ remanded the complaint to the agency, and the agency issued a final
decision pursuant to 29 C.F.R. � 1614.110(b) concluding that complainant
failed to prove that he was subjected to discrimination as alleged.
In its decision, the agency found that complainant's name was selected
at random by the agency from among those employees occupying positions
designated as testing designated positions (TDP), without regard to his
race, sex, age or prior EEO activity. Complainant was therefore ordered
to participate in the random drug testing on February 19, 2004, which
he did. The agency found that though complainant had been reassigned
to a different building since he first occupied a TDP in 1996, his
second level supervisor stated that complainant's position may still
require him to handle hazardous materials and that neither his drug
testing designation nor his position description had changed since 1996.
Moreover, complainant was drug tested as recently as 2001. Accordingly,
the agency found no discrimination had occurred.
On appeal, complainant's representative states that the reason complainant
did not respond to the agency's requests for discovery and was therefore
dismissed from the hearing process was because complainant had been denied
official time to prepare his case and also denied the assistance of his
selected representative. Complainant's appeal statement claims that
after receiving the record of investigation, complainant's representative
received no further information concerning complainant's case.
ANALYSIS AND FINDINGS
As a preliminary matter, the Commission addresses the AJ's decision to
dismiss the hearing request. The Commission's regulations afford broad
authority for the conduct of hearings by Administrative Judges. See 29
C.F.R. � 1614.109 et seq.; Rountree v. Department of Treasury, EEOC
Appeal No. 07A00015 (July 13, 2001). When a complainant or agency
fails to comply with an AJ's order, an AJ may take action against
non-complying party pursuant to 29 C.F.R. � 1614.109(f)(3), up to and
including issuing a decision in favor of the opposing party, or take
such other actions as appropriate. See 29 C.F.R. � 1614.109(f)(3) (iv)
and (v). Here, the AJ's Acknowledgment and Order of December 23, 2004,
informed complainant of his responsibility to designate a representative,
even if he had already designated one during earlier in the EEO process,
and also advised complainant that failure to abide by the AJ's orders
could result in sanctions up to and including dismissal of his complaint.
Subsequently, by order dated March 11, 2005, the AJ ordered complainant
to submit a response to the agency's discovery request by March 17, 2005.
The order clearly indicated that failure to comply fully with the order
could result in the cancellation of the request for a hearing.
Despite complainant's claim on appeal, we note that the record is void of
any evidence that complainant made any request for official time that was
either granted or denied, nor do we find any evidence that complainant
designated a representative to assist him with the hearing process.
Moreover, complainant does not claim that he did not receive either the
agency's discovery request or the AJ's order compelling his response.
Rather, it appears that complainant simply chose to ignore both the
agency's requests and the AJ's order. Because complainant failed to
cooperate with the discovery, and to respond to the AJ's Order, the AJ's
decision to remand the complaint to the agency for the issuance of a
decision on the merits was not an abuse of his discretion.
We now turn to the agency's decision on the merits. To prevail in a
disparate treatment claim such as this, complainant must satisfy the
three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially
establish a prima facie case by demonstrating that he or she was subjected
to an adverse employment action under circumstances that would support
an inference of discrimination. Furnco Construction Co. v. Waters, 438
U.S. 567, 576 (1978). Proof of a prima facie case will vary depending
on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804
n. 14. The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
We find that complainant has not identified any other employees, not
in complainant's protected classes, occupying TDP designated positions,
who were selected for drug testing, but who were not also drug tested.
While complainant argues that his position should have been changed
to a non-TDP designation, we find that such an error is not properly
addressed through the EEO process and that complainant has not shown
that the agency's failure to change his designation was the result of
discrimination.
With respect to complainant's reprisal claim, we find that complainant
established a prima facie case of reprisal discrimination in that he
had previously participated in the EEO process and had filed prior EEO
complaints. Specifically, S1, complainant's second level supervisor,
was identified as a responsible management official and was aware of
complainant's EEO activity, part of which occurred from at least October
2002, when agency case number JQ-03-030 was filed, through at least August
2004, when the Commission issued its decision in that case.1 We find
the agency has provided a legitimate, non-discriminatory reason for
its actions. Namely, the agency argues that other material handlers
(in positions with the same position description) were also occupying
drug tested (or TDP) positions, that complainant's position had not
been changed from a TDP designation to a non-TDP position, and that S1
advised that complainant, serving as he does on the night shift, may still
have occasion to handle hazardous materials. We find complainant's
bare assertion that he did not handle hazardous materials and that
his position description should have been changed in 2002, when he was
reassigned to a different building, to be unsupported by any evidence.
CONCLUSION
We therefore AFFIRM the agency's final decision finding no
discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 8, 2006
__________________
Date
1 Patrick v. Department of Defense (Defense Logistics Agency), EEOC
Appeal No. 01A42804 (August 26, 2004).
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2
01A62241
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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01A62241