Ronald D. Browne Appellant,v.310-96-5085 Robert E. Rubin, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionSep 9, 1999
01972140 (E.E.O.C. Sep. 9, 1999)

01972140

09-09-1999

Ronald D. Browne Appellant, v. 310-96-5085 Robert E. Rubin, Secretary, Department of the Treasury, Agency.


Ronald D. Browne )

Appellant, )

) Appeal No. 01972140

v. ) Agency No. 95-2233 & 95-2250

) Hearing No. 310-96-5094 &

310-96-5085

Robert E. Rubin, )

Secretary, )

Department of the Treasury, )

Agency. )

)

)

DECISION

Ronald Brown (hereinafter, "appellant") filed a timely appeal from a

final agency decision (FAD) concerning his equal employment opportunity

(EEO) complaint of unlawful employment discrimination on the bases of race

(Caucasian), national origin (Scot-Irish, German), color (white), religion

(Christian), sex (male), reprisal (prior EEO activity), age (DOB: 9/19/45)

in violation of Title VII of the Civil Rights Act of 1964, 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. Appellant alleges

he was discriminated against when: (1) he was not certified as eligible

for the position of supervisory police officer TR-083-09 under Vacancy

Announcement 95-0011-CAM; (2) he received unfavorable comments on his

performance appraisal, and (3) he received an official reprimand for

failing to follow orders, rules and regulations. The appeal is accepted

in accordance with EEOC Order No. 960.001. For the following reasons,

the agency's decision is AFFIRMED.

The record reveals that appellant, a Lead Police Officer, TR-0083-8, at

the agency's Bureau of Engraving and Printing police unit of the Western

Currency Facility, filed a formal EEO complaint with the agency on March

29, 1995 and on May 2, 1995, alleging that the agency had discriminated

against him as referenced above.

At the conclusion of the investigation, appellant received a copy of

the investigative report(s) and requested a hearing before an EEOC

Administrative Judge (AJ). Following a hearing, the AJ issued a

Recommended Decision (RD) finding no discrimination.

The AJ concluded that appellant failed to establish a prima facie case of

race, religion, national origin, sex, or age discrimination<1> because he

failed to show that similarly situated younger, non-white, non-Christian,

female employees were treated differently with respect to discipline,

or in their applications for job vacancies. The AJ further found that

the appellant failed to show a prima facie case of reprisal because he

failed to show he had engaged in protected EEO activity prior to the

disputed evaluation, his non-selection or his reprimand, or that his

supervisors knew of his purported activity.

The AJ then concluded that the agency articulated legitimate,

nondiscriminatory reasons for its actions, namely, that the appellant had

refused to obey his supervisor's (S1) (Caucasian, male, German, Catholic,

DOB 1/5/65, no prior EEO activity) order to dispose of his cup of coffee

while on duty, and that he repeated the offense shortly thereafter.

The agency also demonstrated that the appellant was rated ineligible

for the position of Supervisory Police Officer because he did not meet

the time-in-grade requirements. The appellant argued that he had been

qualified for a previous vacancy for a supervisory police officer in 1994

but the personnel specialist (Caucasian, female, national origin unknown,

religion unknown, 48 years old, EEO activity unknown) stated that the

reason for this was his status under the Veteran's Readjustment Act (VRA)

at the time which waived the time-in-grade requirements. In October 1994,

appellant was converted to a career conditional employee which required

that he meet time-in-grade requirements.

Finally, the AJ found that appellant did not establish that more likely

than not, the agency's articulated reasons were a pretext to mask unlawful

discrimination or retaliation. In reaching this conclusion, the AJ found

that appellant failed to establish any evidence of racial animus in his

supervisors' (S1 and S2) (African American, black, male, 35 years old,

EEO activity unknown) issuance of a reprimand, or the unfavorable comments

contained in appellant's evaluation. Similarly, appellant failed to

establish evidence of racial animus in the conclusion that he did not

meet the eligibility criteria for the Supervisory Police Officer position.

The agency adopted the AJ's recommended decision as its final decision.

Appellant makes no new contentions on appeal, and the agency did not

submit a statement on appeal.

After a careful review of the record, the Commission finds that the AJ

correctly summarized the relevant facts and referenced the appropriate

regulations, policies, and laws. We note that appellant could not

establish that his filing of a civil action against an agency contractor

constituted protected EEO activity. Consequently, he failed to prove

that the agency's refusal to qualify him for the position of supervisory

police officer was based on reprisal.

Appellant compared the handling of his application with that of co-worker

1 (Black, female, religion unknown, national origin unknown, DOB 6/7/63,

prior EEO activity) and co-worker 2 (Black, male, religion unknown,

national origin unknown, DOB 9/25/65, no prior EEO activity) who were

certified as qualified. The record reflects however, that both of these

employees had VRA status which waived the time-in-grade requirements.

None of the other employees with whom appellant compares himself are

outside of his protected groups.

We further note that appellant failed to demonstrate that the actions

of the agency in its discipline and evaluation of him were motivated

by discriminatory animus toward appellant's race, color, age or sex.

In addition, the appellant failed to show that the supervisors responsible

for the discipline and evaluation were aware that he had engaged in any

prior EEO activity, i.e. his complaint regarding his non-selection.

The AJ considered evidence offered by appellant that his supervisors

were members of a group called "Shadow Walkers" which he contended was

formed to advance the career interest of African American interests to the

detriment of Caucasians. The AJ did not give weight to this evidence, and

we affirm, because S2 was not a member of the group and S3 (Black, male,

DOB 1/21/49, prior EEO involvement) was a member for one month only.

Aside from this evidence, appellant was unable to persuade us that

his race, color, age or sex was a factor in the employment decisions

at issue.

We discern no basis to disturb the AJ's findings of no discrimination

which were based on detailed assessment of the record and the credibility

of the witnesses. See Gathers v. United States Postal Service, EEOC

Request No. 05890894 (November 9, 1989); Wrenn v. Gould, 808 F.2d 493,

499 (6th Cir. 1987); Anderson v. Bessemer City, 470 U.S. 564, 575 (1985).

Therefore, after a careful review of the record, including appellant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, we AFFIRM the agency's

final decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in the

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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 the decision.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive the decision. To ensure that your civil action is

considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR

DAYS from the date that you receive the decision or to consult an attorney

concerning the applicable time period in the jurisdiction in which your

action would be filed. 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 (Z1092)

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:

9/09/99

DATE Carlton Hadden, Acting Director

Office of Federal Operations1The appellant withdrew

the bases of religion, national origin and sex

during the counseling phase of his complaint on the

issues of his reprimand and unfavorable evaluation.