0120093116
01-13-2010
Thomas E. Bell, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Thomas E. Bell,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120093116
Agency No. 07-67400-02534
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's May 6, 2009 final decision concerning an equal
employment opportunity (EEO) complaint claiming employment discrimination
in violation of the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
During the period at issue, complainant was employed as the Director
of Business, NF-1101-05 at the Marine Corps Community Services, Marine
Corps Air Station in Iwakuni, Japan.
On August 10, 2007, complainant filed the instant formal complaint.
Therein, complainant claimed that the agency discriminated against him
on the basis of age (over 40) when:
he was terminated as a consequence of management's decision not to extend
his overseas tour.1
The record reflects that complainant had worked in the Director position
from June 2002 until his resignation on June 13, 2007. The record further
reflects that complainant's overseas assignment agreement, dated June
12, 2002, indicated the length of his overseas tour was three years.
Complainant's three-year tour was previously extended for two years.
Therefore, complainant had already served overseas for five years.
At the conclusion of investigation, complainant was provided with a copy
of the report of the investigation and notice of the right to request
a hearing before an EEOC Administrative Judge or a final decision
within thirty days of receipt of the correspondence. Complainant did
not respond.
On May 6, 2009, the agency issued the instant final decision, finding
no discrimination. The agency found that complainant did not show by a
preponderance of the evidence that he was discriminated against on the
basis of age. Finally, the agency concluded that complainant did not
prove, by a preponderance of the evidence, that the agency's proffered
reasons for its action were a pretext for discrimination.
Complainant's first-level supervisor (S1) stated that he found complainant
"to be a straightforward, intelligent, knowledgeable businessman who
quickly identified operational challenges and took measures to overcome
them." S1 further stated that complainant's attention to detail,
passion for his work, and sense of urgency "was sometimes seen by his
subordinates as over-bearing, however, and this resulted in low Associate
Satisfaction Index (ASI) scores in the Business Operations Division."
S1 stated that the ASI is a survey administered by Headquarters and
is taken by all agency employees. S1 stated that the subject survey
"showed that a disproportionate number of employees were dissatisfied
with the management at [complainant's] level."
S1 stated that he recommended a two-year extension for complainant
"based on his knowledge of our business environment, his experience
working with the professionals at Marine Corps Headquarters, the working
relationships he had developed with other service organizations here in
Japan, and his past work performance." S1 stated, however, complainant's
second-level supervisor (S2), also the Marine Corps Community Services
(MCCS) Director, disapproved his recommendation. S1 stated that he was
aware that S2 had concerns with the low ASI scores, as well as a November
15, 2006 Letter of Reprimand and "I'm sure they weighed on his decision
not to extend [complainant]. However, after my initial recommendation,
I didn't have much involvement in the final decision. While I disagreed
with that decision, I understood and accepted [S2's] position."
S2 stated that he was the deciding official to terminate complainant's
overseas assignment. Specifically, S2 stated "there were many factors in
my decision not to extend [complainant], but my decision was primarily
based on his poor leadership style and its effect on our employees."
S2 stated while he and complainant had several meetings regarding
"how he managed and handled his personnel, he never made the changes
I required of him and all my [Department] Heads regarding how we must
expect the best from all of our employees, being a leader and mentor;
encouraging creative though, hearing your employees out, etc. He failed
to spend time with his direct subordinates to talk with them, understand
their needs, expectations and aspirations. Instead, he operated within
an environment that was perceived as hostile and unproductive by the
majority of his staff and employees." S2 stated "ultimately, when I
made the decision not to extend his tour, I was convinced that he was
not going to change his leadership style."
Further, S2 stated that during the relevant time, the ASI score was 48,
which was the lowest while complainant was there. S2 stated that the ASI
score increased to 59 points after complainant no longer worked there.
S2 stated "an increase or decrease of two or more points in a year is
significant. Many of the employees cited the improvement in the work
environment after [complainant's] departure."
The Human Resources Specialist (HR Specialist) stated that the standard
for handling extensions/non-extensions of overseas tours is "nine months
prior to expiration of current overseas, an extension of overseas tour
request is sent to the Division Director (in this case the Assistant MCCS
Director first supervisor of [complainant]), who will forward a letter
of recommendation/non-recommendation to the MCCS Director for approval."
The HR Specialist further stated that the MCCS Director "will approve,
amend or disapprove the overseas tour extension after consideration
of recommendation." The Specialist stated that if the tour extension
is not approved, the employee would be separated from the agency upon
completion of the overseas tour.
A claim of disparate treatment is examined under the three-party analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima facie
of discrimination by presenting facts that, if unexplained, reasonably
give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. See
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Once the agency has met its burden, the complainant bears the ultimate
responsibility to persuade the fact finder by a preponderance of the
evidence that the agency acted on the basis of a prohibited reason.
See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that after a careful review of the record,
the agency articulated legitimate, nondiscriminatory reasons for its
actions. Complainant has not demonstrated that these reasons were a
pretext for discrimination.
Complainant, on appeal, argues at length that the agency improperly
investigated his formal complaint. Specifically, complainant states
that the agency "erroneously states in the Background section, first
paragraph, of its Analysis of the Case, that the Complainant resigned his
position as Director of Business on June 13, 2007. The Complainant was
terminated on June 13, 2007." Complainant further argues that the agency
improperly treated the overseas agreement "as an employment contract
instead of a transportation agreement." Complainant argues that S2
never counseled him concerning his performance or leadership style.
However, the Commission determines that the investigation was properly
conducted, and that complainant has provided no persuasive arguments
indicating any improprieties in the agency's findings.
Therefore, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM the agency's final decision because the preponderance
of the record evidence does not establish that discrimination occurred.
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
January 13, 2010
__________________
Date
1 On September 11, 2007, the agency dismissed complainant's termination
claim as well as five other claims on the grounds of untimely EEO
Counselor contact. On appeal, the Commission affirmed the agency's
dismissal of five claims on the grounds of untimely EEO Counselor contact.
However, the Commission reversed the agency's dismissal of the termination
claim and remanded the matter to the agency for further processing.
Bell v. Department of the Navy, EEOC Appeal No. 0120080178 (January 25,
2008), req for recons denied, EEOC Request No. 0520080340 (August 7,
2008). Following the Commission's decision, the agency processed the
remanded claim in accordance with 29 C.F.R. � 1614.108, which is now
the subject of the instant appeal.
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0120093116
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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