Tommy L. Mitchenor, Complainant,v.Pete Geren, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionJun 4, 2009
0120072447 (E.E.O.C. Jun. 4, 2009)

0120072447

06-04-2009

Tommy L. Mitchenor, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.


Tommy L. Mitchenor,

Complainant,

v.

Pete Geren,

Secretary,

Department of the Army,

Agency.

Appeal No. 0120072447

Hearing No. 170-2006-00010X

Agency No. ARFTMON04MAR0009

DECISION

On April 23, 2007, complainant filed an appeal from the agency's March 27,

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. The appeal is deemed timely and is accepted pursuant

to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission

AFFIRMS the agency's final decision.

BACKGROUND

At the time of events giving rise to this complaint, complainant was

assigned to a six-month detail as a Contracting Officer Representative

(COR) at the agency's Eagle Base facility in Bosnia. On June 8, 2004,

complainant filed an EEO complaint alleging that he was discriminated

against on the bases of his race (African-American) and in reprisal for

prior protected EEO activity when management did not select him for the

position of Logistics Management Specialist, GS-12, in the Readiness

Directorate of the Logistics Readiness Center.

Complainant also alleged that he was subjected to a hostile work

environment on the bases of race and reprisal when:

1. on or about November 2, 2003, complainant was accused of arriving

at Fort Benning, Georgia to attend training for his six-month detail to

Bosnia a week early in order to visit with family in the area;

2. the contract personnel under complainant's supervision continued

to deal with the Chief, Army Material Command (CAMC), instead of

complainant, which undermined complainant's authority;

3. complainant was not assigned a personal vehicle, nor was he

permitted to park his vehicle at the security office;

4. one of the contract employees at complainant's facility sent at

least 10 e-mail messages laden with racial slurs but management failed

to take any action;

5. management held complainant to a different assignment of duties

than the previous COR when he was not permitted to manage civilian

personnel in Kosovo, when he was required to have his timesheets signed,

and when he was given a workspace situated next to the CAMC's office;

6. on or about December 2003, his Secret Internet Protocol

Reporting Network report was not forwarded to his supervisor (S1) by

S1's Administrative Officer;

7. on February 6, 2004, complainant moved personnel to a new

location three days in advance of the schedule move date, but the

CAMC then changed the scheduled move date to February 2, 2004, without

notifying complainant; and

8. the CAMC sent S1 an email on March 9, 2004, stating that he

wanted complainant removed from his position in Bosnia.

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 assigned to the case issued an Order of Dismissal,

dated February 12, 2007, after complainant failed to appear at the

scheduled hearing or to show good cause for his failure to do so.

The AJ remanded the complaint to the agency, and the agency issued

a final agency decision (FAD) pursuant to 29 C.F.R. � 1614.110(b),

finding no discrimination. In its FAD, the agency concluded that

assuming, arguendo, complainant had established a prima facie case of

race and reprisal discrimination, it nonetheless articulated legitimate,

nondiscriminatory reasons for its actions that complainant failed to

show were a pretext for unlawful discrimination. On appeal, complainant

reiterates his contention that he was subjected to unlawful race and

reprisal discrimination, and that the agency's articulated reasons for

its actions are pretextual.

ANALYSIS AND FINDINGS

Initially, we find that the AJ acted within his discretion when he

issued the order of dismissal remanding the complaint to the agency for

issuance of a FAD, because complainant failed to articulate a reasonable

explanation as to why he failed to appear at the scheduled hearing.

As this is an appeal from a decision issued without a hearing, pursuant

to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo

review by the Commission. 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").

Non-Selection

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, however, since 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).

Here, we find that assuming, arguendo, complainant established a prima

face case of race and reprisal discrimination, the agency articulated

legitimate, nondiscriminatory reasons for its actions. Specifically, the

record reflects that complainant applied for the position of Logistics

Management Specialist, GS-12, advertised on February 22, 2004, under

vacancy announcement number NEAL04701128. The record also reflects that

complainant was among the candidates referred for consideration and that,

following an interview, he was ranked in second place below the selectee.

(Report of Investigation, 98-108). The selecting officials for the

position at issue stated that the selectee performed better in the

interview than complainant, but that their qualifications were comparable

and if the selectee had declined the position, they would have selected

complainant. (R.O.I., 13-15). We find that complainant has failed to

proffer any persuasive evidence to show that his qualifications for the

position at issue were observably superior to those of the selectee,

or that his non-selection was motivated by discriminatory animus toward

his race or prior EEO activity.

Hostile Work Environment

To establish a prima facie case of hostile environment harassment,

a complainant must show that: (1) he is a member of a statutorily

protected class; (2) he was subjected to harassment in the form of

unwelcome verbal or physical conduct involving the protected class;

(3) the harassment complained of was based on the statutorily protected

class; and (4) the harassment affected a term or condition of employment

and/or had the purpose or effect of unreasonably interfering with

the work environment and/or creating an intimidating, hostile, or

offensive work environment. Humphrey v. United States Postal Service,

EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. �1604.11. Further,

the incidents must have been "sufficiently severe and pervasive to alter

the conditions of complainant's employment and create an abusive working

environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993);

see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75 (1998).

Here, we find that complainant has not established a prima facie case

of harassment because he has not shown that the incidents alleged were

related to his race or prior EEO activity. We also find that he failed to

show that the incidents at issue occurred as alleged, or were sufficiently

severe or pervasive so as to rise to the level of actionable harassment.

Specifically, the record reflects that complainant was detailed for a

179-day tour to the COR position in Bosnia. Complainant was recalled

early from this detail at the request of the CAMC. By e-mail dated

March 9, 2004, the CAMC requested that complainant's detail be ended

because he had "lost [his] faith in [complainant's] qualification to

perform the duties" and "in his [complainant's] being a team player."

(R.O.I., 255). S1 corroborated these statements in an e-mail dated

March 10, 2004, which stated that he believed complainant "was out of

his league and [did not] have the knowledge or the ability to represent

us and support the AMC/CECOM mission." (R.O.I., 233-234). We find that

complainant has proffered no evidence, beyond his bare assertions, that

the agency's actions were motivated by discriminatory animus toward his

protected classes. Additionally, we note that with respect to claim

(4), the record reflects that the e-mails were newsletters sent by a

government contract employee, and were not directed toward complainant

nor specifically directed toward complainant's race. The record also

reflects that the content of the newsletters was found to be inappropriate

by management, and the author of the newsletters was, in fact, reprimanded

and disciplined for sending the e-mails. (R.O.I., 16).

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, we affirm the FAD.

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

June 4, 2009

Date

2

0120072447

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

6

0120072447