0120073702
09-17-2009
Thomas B. Harris, Complainant, v. Robert M. Gates, Secretary, Department of Defense (Army & Air Force Exchange Service), Agency.
Thomas B. Harris,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense
(Army & Air Force Exchange Service),
Agency.
Appeal No. 0120073702
Agency No. AAFES06121
DECISION
On August 22, 2007, complainant filed an appeal from the agency's July
15, 2007 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. The appeal is accepted pursuant to
29 C.F.R. � 1614.405(a).1 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 grade 2 Laborer (Stocker) for the Army & Air Force Exchange Service
(agency) at the Fort Stewart Main Store in Fort Stewart, Georgia.
Complainant's major job duties included unloading merchandise from
vehicles and placing the merchandise for sale on shelves and display
areas. Between March and July 2006, complainant applied, but was not
selected, for seven regular part-time (RPT) positions.
On August 29, 2006, complainant filed an EEO complaint alleging that he
was discriminated against on the bases of race (Caucasian), sex (male),
and age (sixty-six years old) when he was not selected for the following
RPT positions:
1. Laborer (Stocker), under requisition number 2006-2478;
2. Warehouse Worker, under requisition number 2006-3068;
3. Laborer (Stocker), under requisition number 2006-3807;
4. Laborer (Stocker), under requisition number 2006-4089;
5. Warehouse Worker, under requisition number 2006-5770;
6. Laborer (Stocker), under requisition number 2006-6739;
7. Warehouse Worker, under requisition number 2006-6959;
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). In accordance with
complainant's request, the agency issued a final decision pursuant to 29
C.F.R. � 1614.110(b). The agency determined that the selecting officials
articulated legitimate, nondiscriminatory reasons for complainant's
nonselections. The selecting officials stated in their declarations
that complainant was not reliable in stocking, had problems accepting
directions, was not as productive as others, and did not appear as eager
to learn a new job. The agency found that complainant failed to show that
the articulated reasons were pretextual, and concluded that complainant
failed to prove that he was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the agency erred in finding
no discrimination in that (1) there were no official documents to
substantiate the selecting officials' evaluations of complainant's
performance because complainant's supervisors failed to provide formal
performance evaluation ratings, as required by the local labor-management
agreement; and (2) complainant provided statements from coworkers who
stated that complainant was a proficient worker and did not exhibit
performance deficiencies. In addition, complainant contends that the
agency erred in refusing to provide copies of any and all job vacancy
announcements for which complainant applied, and instead only provided
copies of the vacancy announcements for the seven positions at issue in
this case.
ANALYSIS AND FINDINGS
Because this is an appeal from a decision issued without a hearing,
pursuant to 29 C.F.R. � 1614.110(b), the Commission reviews the agency's
decision de novo. 29 C.F.R. � 1614.405(a). See EEOC Management Directive
110, Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo
standard of review "requires that the Commission examine the record
without regard to the factual and legal determinations of the previous
decision maker," and that EEOC "review the documents, statements, and
testimony of record, including any timely and relevant submissions of
the parties, and . . . issue its decision based on the Commission's own
assessment of the record and its interpretation of the law").
A. Procedural Issues
On appeal, complainant contends that the agency erred in not providing
complainant with copies of any and all job vacancy announcements
for which he had applied because he alleged a continuing pattern
of ongoing discrimination, as evidenced by multiple nonselections.
Complainant argues that the agency's provision of only the most recent
seven vacancy announcements limited his access to the "full complement
of data imperative to prosecute his complaint." Essentially, complainant
asserts that the agency improperly fragmented his real underlying claim of
a pattern of ongoing discrimination by improperly identifying individual
incidents of nonselection as separate and distinct legal claims, rather
than considering all nonselections as part of an ongoing claim.
Agencies must avoid fragmenting, or breaking up, a complainant's legal
claim during EEO complaint processing. Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 5-5 (November
9, 1999). A claim refers to an assertion of an unlawful employment
practice or policy for which, if proven, there is a remedy under the
federal equal employment statutes. Id.
Fragmentation often results from a failure to distinguish between the
claim that a complainant is raising and the evidence (factual information)
that complainant is offering in support of that claim. Id. When defining
a claim, two components must be identified. Id. at 5-7. First, the
claim must contain a factual statement of the employment practice or
policy being challenged. Id. Second, the basis for a violation of an
equal employment statute must be identified. Id.
Although fragmentation rarely occurs when the complainant presents a legal
claim based on a single incident (such as a particular selection decision)
rather than a series of events, the Commission has offered the following
as an example of fragmentation in the context of a nonselection:
A complainant tells the counselor that she believes that the agency
discriminated against her when she was not selected for a GS-14 Engineer
position, when she was not detailed to serve in a similar position,
and when she was denied access to a particular training program.
All of these seemingly different incidents are part of the same claim
of a discriminatory nonselection, as the complainant has alleged that
the detail and the training would have enhanced her qualifications for
the GS-14 Engineer position and, therefore, are relevant to the agency's
failure to select her for that position.
Id. at 5-7. In this example, the employment practice might be defined
as: management's failure to advance the complainant's career to a GS-14
position. Id.
In his formal complaint, complainant wrote:
From the inception of my employment at this [agency] facility, I have
applied for no less than seven position vacancies, all of which I am
eminently qualified to perform. I was selected for none of those
vacancies. The fact of the matter here is that this, as evidenced
below, presents a clear, pervasive, and overt pattern of impermissible
discrimination, both in violation of Title Seven (Civil Rights Act)
and of Government-wide and Agency regulations. . . . [T]here does
exist clear evidence of a sustained, illegal, and deliberate effort
on the part of my supervisor (and possibly other management officials)
to place impermissible hurtles in the path of efforts to advance within
this Activity.
In a letter dated September 19, 2006, complainant's representative
wrote to the agency: "There is no claim presented in this complaint
that the alleged discrimination has been a single, discrete act, but
rather, it is manifested through a series of discriminatory acts, which
taken collectively, exhibit numerous individual acts of impermissible
discrimination."
In this case, the Commission finds that the agency did not err in
identifying the agency's seven most recent nonselections of complainant
as separate and distinct legal claims. Although complainant's formal
complaint could suggest that the employment practice may be broadly
defined as management's failure to advance complainant's career to a
Regular Part Time position, in the context of nonselections, complainant
failed to identify in his formal complaint other incidents, such as
lack of training or opportunity to enhance his qualifications for the
positions, as evidence in support of that claim.
B. Disparate Treatment Claims
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).
He must generally establish a prima facie case by demonstrating that
he 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). The prima facie inquiry may be
dispensed with in this case because the agency has articulated legitimate
and nondiscriminatory reasons for its conduct. See United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997). To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation is
a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of
the Navy, EEOC Request No. 05950351 (December 14, 1995).
1. Agency's Legitimate, Nondiscriminatory Reasons for Nonselections
The Commission finds that the agency articulated legitimate,
nondiscriminatory reasons for complainant's nonselections. For the
positions identified as 1, 2, 5, and 6, supra, the record shows that
the temporary stockroom manager was the selecting official for those
positions. In his declarations, the selecting official stated that
he chose the selectees for positions 1, 2, and 6 because they "showed
initiative and motivation while working as a stocker." For position 5,
the selecting official stated that he chose the selectee because she
had "proven herself reliable" and was the best qualified candidate,
given the workload and demands of the position. The selecting official
stated that he did not select complainant because he "was not reliable
in his stocking area," and "[m]ost of the merchandises ended up back in
the stockroom shelves instead on the sales floor."
For the positions identified as 3 and 4, supra, the record reveals that
the operation manager was the selecting official for those positions.
In his declaration, the selecting official stated that the selectee
for position 3 was chosen based on her work ethic, performance, and
possessing good working relationships with superiors and subordinates.
According to the selecting official, complainant was not chosen regarding
positions 3 and 4 because he was not "the most productive employee,"
"has a problem accepting direction," "spends a lot of time breaking,"
and did not have the best attitude.
For the position identified as 7, supra, the record indicates that
the facility manager for the local military clothing sales store was
the selecting official. In his declaration, the selecting official
stated that he chose the selectee because she demonstrated and expressed
"eagerness to learn new things and looked at this position as a challenge
and something new she will be learning." According to the selecting
official's declaration, complainant was not selected because, in his
interview, he did not demonstrate an eagerness to learn the job.
2. Pretext
On appeal, complainant contends that he established that the agency's
articulated reasons for its actions were pretexts for discrimination.
Specifically, complainant argues that he was "eminently qualified" for
the positions because of his background in military supply technology,
a training course he had taken, and his tenure with the agency.
Additionally, complainant stated that he should have been selected based
upon his superior qualifications. The Commission finds that the record
does not contain any evidence, other than unsubstantiated statements by
complainant, to suggest that complainant's qualifications were plainly
superior to the selectees'.
Complainant also argues that the selecting officials' comments about
complainant's performance deficiencies, work ethic, and attitude,
were pretextual because his supervisors never gave him any performance
ratings or evaluations, even though such ratings were required by relevant
regulations and labor-management agreements. According to complainant,
the absence of official performance documentation indicates that
management never believed complainant's performance to be deficient.
In addition, complainant includes in his appellate brief unsworn,
hand-written statements by two of complainant's coworkers. One coworker
wrote that he heard a supervisor state that there was no reason
for complainant to be hired as a Regular Part Time capacity because
complainant worked too slowly and because complainant received three
retirement checks. The other coworker wrote that complainant is a
good worker who shows up to work all the time, completes his work,
and never leaves his work area unfinished. This coworker also wrote
that complainant's supervisor, the selecting official for positions 1,
2, 5, and 6, questioned complainant's need for part-time work because
complainant has three other sources of income.
The Commission finds that an absence of performance evaluations does not
necessarily show that a subsequent assessment of performance is pretextual
and not legitimate. The Commission determines that complainant has
failed to provide examples or evidence that specifically address the
selecting officials' reasons for nonselection, such as whether most
of complainant's merchandise ended up back in the stockroom shelves,
whether complainant displayed motivation and initiative, whether during
his interviews he displayed an eagerness to learn about the position,
and how the amount of time he took for breaks compared with others.
Therefore, the Commission concludes that complainant failed to prove,
by a preponderance of the evidence, that the agency's explanations are
a pretext for discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, the Commission affirms
the agency's final decision finding that complainant failed to prove
that he was discriminated against on the bases alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
September 17, 2009
Date
1 In his notice of appeal, complainant indicates that he received the
agency's final decision on July 24, 2007. The agency does not contest
the timeliness of the appeal.
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0120073702
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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