01990805-_01990806
12-21-2000
Sherman Howard, Complainant, v. F. Whitten Peters, Secretary, Department of the Air Force, (Air Force Audit Agency), Agency.
Sherman Howard v. Department of the Air Force
01990805; 01990806; 01990807
December 21, 2000
.
Sherman Howard,
Complainant,
v.
F. Whitten Peters,
Secretary,
Department of the Air Force,
(Air Force Audit Agency),
Agency.
Appeal Nos. 01990805; 01990806; 01990807
Agency Nos. AFAA94006; AFAA94007; AFAA94008
Hearing Nos. 100-96-7809X; 100-97-7158X; 100-97-7159X
DECISION
Complainant timely initiated appeals from three final agency decisions
concerning three complaints of unlawful 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.<1> The appeals are hereby consolidated
and are accepted pursuant to 29 C.F.R. � 1614.405. For the following
reasons, we affirm the agency's final decisions.
The record reveals that during the relevant time, complainant was
employed as a GS-12 Auditor at the agency's Kapaun Air Base in Germany.
Complainant alleged that he was discriminated against on the bases of
race (Black), sex (male), and in reprisal for prior protected activity<2>
when:
(1) he received an overall "fully successful" rating on his performance
appraisal for the rating period between July 1, 1992 and June 30, 1993;
(2) between February and September 1993 he was subjected to continuous
criticism of his work;
(3) between July and September 1993, management allowed coworkers to
ignore and exclude him from their activities;
(4) on September 24, 1993 he was given an oral notice of a proposed
reprimand,
was told to stop work on the chemical warfare defense equipment audit,
was told to turn in all the work-papers and the draft audit report,
and was told to begin work on the medical/dental audit;
(5) on September 28, 1993 he was given a work-paper review that
was one-sided and did not reflect a previous discussion about the
work-papers;
(6) on November 11, 1993 he was issued a letter of counseling for
unprofessional conduct; and
(7) on March 18, 1994 he received performance feedback and a counseling
letter covering the period from July 1, 1993 to February 1, 1994 but
did not receive response to his written rebuttal.
At the conclusion of the agency's formal investigations of his complaints,
complainant requested hearings before an EEOC Administrative Judge.
The Administrative Judge consolidated the complaints for a hearing.
When complainant failed to notify the Administrative Judge per her April
27, 1998 Scheduling Order as to his ability to proceed with these matters
in light of his medical condition because he "forgot" and then failed to
appear for a July 22, 1998 pre-hearing conference because he believed the
conference call was scheduled for Central Daylight Time even though it
was specifically stated that it was scheduled for Eastern Daylight Time,
the Administrative Judge terminated the hearing process and remanded
the complaints to the agency for a decision on the merits.
In all three of its final decisions, the agency concluded that complainant
failed to prove that the agency's legitimate, non-discriminatory reasons
for its actions were a pretext for discrimination. On appeal, complainant
reiterates his position that management singled him out and treated him
differently from the White auditors in the office and that the White
auditors themselves treated him with malice. He further contends that
the Reports of Investigation excluded the testimony of his witnesses;
however, we find that the record in these consolidated claims includes
all of the affidavits identified by complainant.
After a thorough review of the record, including the testimony of one
witness who stated that the atmosphere at the audit office was pervaded
by racial discrimination, the Commission finds that complainant has not
met his burden of proving, by a preponderance of the evidence, that the
agency's articulated reasons for its actions were a pretext for unlawful
discrimination. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253-256 (1981). In reaching this conclusion concerning
complainant's appraisal, we find no persuasive evidence that complainant
deserved a higher rating, and we note that the only other Black auditor
in the office did receive a higher rating, which supports the agency's
explanation that employees received ratings based on performance, not
race. Concerning complainant's claim that his work was unduly criticized,
we find that complainant's supervisor had a reputation for being very
detailed and making numerous comments on the auditors' work-papers.
There is no evidence that complainant was treated differently than
anyone else in this regard. Moreover, while we acknowledge that there
appeared to be personality conflicts in the office between complainant
and his colleagues, especially his supervisor, the preponderance of
the evidence does not establish that it was race or gender based, and
there is no evidence that management allowed complainant's colleagues
to ignore or exclude him from activities.
Regarding the oral notice of a proposed reprimand which was issued
due to complainant's disrespectful conduct towards his supervisor
during an incident which was witnessed and confirmed by a third party,
complainant has not provided any evidence that his race, sex or prior
protected activity motivated the agency's decision to discipline him.
Subsequently, the letter of counseling he received was a result of his
having been in a public dispute with a supervisor twice within a two
month period. We also find that the record establishes that complainant
was told to stop work on the chemical warfare defense equipment audit and
begin work on the medical/dental audit because of a deadline, not because
of his race, sex or prior protected activity. Finally, complainant has
not presented evidence that the review of his mobility bag work-papers
or management's decision to give him performance feedback and then not to
respond to his written rebuttal was motivated by unlawful discrimination.
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 agency's
final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
December 21, 2000
__________________
Date
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 Complainant alleged reprisal for incidents (4) - (7) only.