01986879
09-08-2000
Willie F. Toomer, Complainant, v. F. Whitten Peters, Secretary, Department of the Air Force, Agency.
Willie F. Toomer v. Department of the Air Force
01986858 et al.
September 8, 2000
.
Willie F. Toomer,
Complainant,
v.
F. Whitten Peters,
Secretary,
Department of the Air Force,
Agency.
Appeal Nos. 01986858, 01986859, 01986879, 01986996
Agency Nos. RFOD96007, RFOD96012, RFOD7009, RFOD7020
Hearing Nos. 100-98-7174X, 100-98-7175X, 100-98-7176X, 100-98-7177X
DECISION
Complainant timely initiated appeals from the agency's final decision
concerning his equal employment opportunity (EEO) 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 accepted pursuant to 29 C.F.R. � 1614.405. Since the
complaints were consolidated for hearing below, we consolidate the
appeals pursuant to 29 C.F.R. � 1614.606. For the following reasons,
the Commission AFFIRMS the agency's final decision.
ISSUES
Complaint No. 1: Whether complainant was discriminated against on the
bases of race (African-American) when, on April 19, 1996, he was not
selected for a GS-030-07 Intramural Sports Director position at the
South Side Fitness Center, Ramstein Air Base, Germany.
Complaint No.2 Whether complainant was subjected to discrimination
based on reprisal (prior EEO activity), when his supervisor: (a) changed
complainant's duty hours on three occasions during May and June 1996;
(b) removed complainant's supervisory duties; (c) altered complainant's
performance plan; (d) failed to coordinate with complainant's prior
supervisor regarding complainant's yearly appraisal; and (e) assigned
complainant demeaning duties (i.e, washing towels, answering telephones,
issuing equipment) that are not part of complainant's job description.
Complaint No. 3 Whether complainant was discriminated against based on
reprisal (prior EEO activity), when his supervisor inserted a memorandum
dated October 11, 1996, into complainant's official personnel file that
contained negative information about complainant's attendance.
Complaint No. 4: Whether complainant was discriminated against on the
bases of race (African-American), and reprisal (prior EEO activity),
when complainant's then supervisor directed complainant to attend a
meeting, but the Fitness and Sport Director and Supervisory Recreational
Specialist denied him entry to the meeting.
BACKGROUND
The record reveals that complainant, a Recreation Assistant at the
agency's South Side Fitness Center, Ramstein Air Base, Germany, filed
four formal EEO complaints with the agency on August 26, 1996, alleging
that the agency had discriminated against him as referenced above.
Although the record is not entirely clear, it appears there was only
an investigation into complainant's claim that he was not selected for
the Intramural Sports Director position (Complaint No. 1). Having not
received a notice that the agency completed its investigation on the
remaining complaints within 180 days from when he filed his formal
complaints, complainant requested the assignment of an EEOC Administrative
Judge for a hearing. Nevertheless, the record reveals that discovery was
accomplished at the hearing stage, including the taking of depositions
as well as interrogatories.
Finding there were no material facts in dispute, on June 1, 1998, the
AJ issued a decision without a hearing, finding no discrimination.
In complainant's first complaint, the AJ concluded that complainant
established a prima facie case of race discrimination because
complainant was qualified for the position for which he applied, yet
the agency selected an individual outside of complainant's protected
class. However, complainant failed to establish an inference of
reprisal discrimination because he failed to show he engaged in prior
EEO activity. The AJ further concluded that the agency articulated
legitimate, nondiscriminatory reasons for its actions. The AJ found
that the selectee possessed superior qualifications, including an
advanced degree and excellent relevant work experience in the field.
Although complainant argued that the selectee was preselected, the
AJ found insufficient evidence of a discriminatory motive or pretext.
In that regard, the AJ found complainant's qualifications met the minimum
requirements of the position, but were not observably superior to those
of the selectee's.
Complainant alleged multiple claims of discrimination in his second
complaint, including allegations concerning a change in his duty hours,
demeaning job assignments, change to his performance plan, and a failure
to coordinate with his prior supervisor regarding his performance plan.
The AJ found that complainant failed to establish a prima facie case of
reprisal discrimination because he failed to show that his supervisor
was aware of complainant's prior EEO activity when the challenged actions
occurred, and thus, he failed to establish the requisite causal connection
between the actions alleged and his prior protected activity. Assuming,
that complainant had established an inference of discrimination, the
AJ found complainant failed to show the agency's reason for its actions
were a pretext for discrimination.
For instance, the agency presented evidence that almost all employees'
schedules changed on short notice depending on mission needs and equitable
work distribution. As for the change in complainant's supervisory duties,
the agency maintained that complainant's position description contained no
supervisory duties, so to the extent that complainant was performing those
duties, the agency was entitled to remove any such duties. The agency
also maintained that all employees performed cleanup duties and all GS-5
Recreation Assistants had their performance plans changed. Finally, if
complainant's present supervisor failed to coordinate with complainant's
prior supervisor, the agency found that there was no requirement that
such coordination occur. In fact, complainant's new supervisor rated
complainant's work performance �excellent,� as complainant's prior
supervisor did. In sum, the AJ found insufficient evidence that the
agency's reasons for its actions in this complaint were a pretext for
discrimination.
In his third complaint, complainant alleged that his supervisor retaliated
against him when he placed a memo in complainant's official personnel file
detailing complainant's history of absenteeism. The AJ found complainant
failed to establish that he was subjected to an adverse action, and thus,
failed to establish an inference of discrimination. Assuming complainant
did establish he was subjected to an adverse action, the AJ noted that
the memo was removed from complainant's file. In that regard, the AJ
found the memo was placed in complainant's official personnel file only
as a means of replacing an attendance form that had been removed from
complainant's record without authorization. The AJ found complainant
failed to offer any evidence of discrimination, rather, the AJ found
the memo served to recreate the record.
We now turn to complainant's final complaint. Therein, complainant
alleged the Director of Fitness and Sport and the Supervisory Recreational
Specialist denied him access to a meeting in January 1997, despite
complainant's contention that his then first line supervisor directed
him to attend the meeting. The AJ found complainant failed to establish
the agency's reasons for denying complainant access to the meeting were a
pretext for discrimination. Rather, the AJ found the standard procedure
was to limit attendance at meetings, and complainant's Non-Commissioned
Officer in Charge was at the meeting, so there was no reason for
complainant to attend.
In light of the above, the AJ found no material facts in dispute, and
thus recommended the agency issue a decision finding no discrimination.
On August 3, 1998, the agency issued a final decision adopting the
AJ's RD. This appeal followed.
On appeal, complainant contends that the AJ erred when he issued
a decision without a hearing. He claims that the selectee did
not accurately establish his qualifications, and that there
are inconsistencies in the record. In response to complainant's
appeal, the agency disputes complainant's arguments, and argues that
complainant failed to produce any evidence in support of his claims of
discrimination.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. This regulation is patterned after the summary judgment procedure
set forth in Rule 56 of the Federal Rules of Civil Procedure. Summary
Judgment is proper when "material facts are not in genuine dispute."
29 C.F.R. � 1614.109(g). Only a dispute over facts that are truly
material to the outcome of the case should preclude summary judgment.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (only disputes
over facts that might affect the outcome of the suit under the governing
law, and not irrelevant or unnecessary disputes, will preclude the entry
of summary judgment). For example, when a complainant is unable to set
forth facts necessary to establish one essential element of a prima
facie case, a dispute over facts necessary to prove another element
of the case would not be material to the outcome. Celotex v. Catrett,
477 U.S. 317, 322-23 (1986). EEOC MD-110, at 7-15 November 9, 1999.
The Commission will apply a de novo standard of review when it reviews
an AJ's decision to issue a decision without a hearing pursuant to 29
C.F.R. � 1614.109(g). See, EEOC MD-110, at 9-16.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that any of the agency's actions were in
retaliation for complainant's prior EEO activity or were motivated by
discriminatory animus toward complainant's race. Complainant failed to
produce sufficient evidence that would raise a genuine issue as to whether
the agency's reasons for its actions were a pretext for discrimination.
We discern no basis to disturb the AJ's decision. 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 (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
September 8, 2000
__________________
Date
1On 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.