01972211
03-03-1999
______________________________ Joe W. Boren, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
______________________________
Joe W. Boren, )
Appellant, )
)
v. )
) Appeal No. 01972211
Robert E. Rubin, ) Agency No. 95-2326
Secretary, ) Hearing No. 310-96-5218X
Department of the Treasury, )
Agency. )
______________________________)
DECISION
Appellant timely appeals the final agency decision (�FAD�) concerning his
complaint of unlawful employment discrimination, in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.;
the Age Discrimination in Employment Act (�ADEA�) of 1967, as amended,
29 U.S.C. �621 et seq.; and the Rehabilitation Act of 1973, as amended,
29 U.S.C. �791, et seq. Appellant alleged that the agency discriminated
against him on the bases of his race (Caucasian), disability (Achilles
tendinitis and bursitis), age (DOB 6/18/41), and reprisal (prior EEO
activity), when: (1) he was not selected for one of three GS-12 Personnel
Security Specialist positions; (2) he was denied the opportunity to work
overtime while on limited duty from June 5, to 30, 1995; (3) he was not
allowed to work at the Command Center while on limited duty; and (4)
he was referred to as a troublemaker by a management official on July
6, 1995. This appeal is accepted in accordance with the provisions of
EEOC Order No. 960.001. For the following reasons, the agency's decision
is AFFIRMED.
The record reveals that during the relevant time, appellant was employed
by the agency's Bureau of Engraving and Printing (�Bureau�) as a Corporal
in the Police and Security Branch (�Police Branch�). On May 15, 1995,
the Bureau issued a vacancy announcement to fill three Personnel Security
Specialist positions. Appellant applied, but was disqualified because
he did not meet the position's time-in-grade requirement. The position
required that applicants have one year of specialized experience at the
GS-11 level. At the time, appellant was at the TR-08 grade level which
is equivalent to the GS-07 grade level.
Due to an on-the-job injury, appellant was in limited duty status from
June 5, to 30, 1995. During this period, appellant's overtime was
limited to thirty minutes per day to change in and out of his uniform.
The Inspector of the Police Branch (African-American, not disabled,
no prior EEO activity) stated that the Bureau's general policy was
not to allow individuals on limited duty to work overtime. Also,
while on limited duty, appellant did not receive an opportunity to
work at the Command Center of the Police Branch. Appellant contended
that experience at the Command Center was essential for an officer's
career development<1> and that Black officers were allowed to work at
the Command Center when on limited or light duty. The Inspector stated
Corporals are not evaluated on their knowledge of the Command Center
and have been promoted to Sergeant without Command Center experience.
He further testified that the knowledge necessary to operate the Command
Center did not significantly differ from that needed to operate any of
the satellite stations. Finally, the Inspector testified that Caucasian
Corporals had been assigned to the Command Center while on limited or
light duty and that Corporals are only assigned to the Command Center
in times of need.
On July 6, 1995, a meeting convened between union officials and
the Bureau's management in an effort to introduce the new union
president to the management officials. While he was not present at the
meeting, appellant contended that, during the course of the meeting,
the Chief of the Office of Support Services (�Chief�) stated that he
was a troublemaker.<2> The Chief denied making any such statement.
Two witnesses, both present at the July 6, 1995 meeting, testified that
they did not recall the Chief making any statements involving appellant.
Believing that he was the victim of discrimination, appellant sought
EEO counseling and, thereafter, filed a formal EEO complaint on August
17, 1995. Following the agency's investigation of the complaints,
appellant requested a hearing before an Administrative Judge (�AJ�).
After conducting a hearing and reviewing the evidence of record,
the AJ issued a recommended decision (�RD�) dated October 29, 1996,
finding no discrimination. Specifically, the AJ found that appellant
failed to establish prima facie cases of race, disability or reprisal
discrimination regarding any of his alleged issues. The AJ nevertheless
found that the agency had articulated legitimate, nondiscriminatory
reasons for its disputed actions. In his analysis, the AJ found that the
evidence showed that: (1) appellant did not meet the qualifications of the
Personnel Security Specialist position; (2) the agency was not required
to grant appellant overtime and did not discriminate against appellant
in not assigning him to the Command Center; and (3) even assuming the
troublemaker statement was made, appellant failed to demonstrate that
it had a nexus to any prior EEO activity. In its FAD dated December 4,
1996, the agency adopted the AJ's RD. It is from this decision that
appellant now appeals.
After a careful review of the record in its entirety, the Commission finds
that the AJ's RD sets forth the relevant facts and properly analyzes the
appropriate regulations, policies and laws. The Commission finds that
appellant failed to present evidence to demonstrate that circumstances
surrounding the agency's actions give rise to an inference of race,
disability, age or reprisal discrimination.<3> Appellant's own testimony
indicates that he believes that the source of his problems with agency
management stems from his union activity, which is not an EEO protected
activity. Therefore, after a thorough review of the evidence of record,
including arguments and evidence not specifically addressed in this
decision, the Commission discerns no basis to disturb the AJ's finding
of no discrimination. Accordingly, it is the decision of the Commission
to AFFIRM the agency's final decision which adopted the AJ's finding of
no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. � l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from
the date that you receive this decision. To ensure that your civil
action is considered timely, you are advised to file it WITHIN THIRTY
(30) CALENDAR DAYS from the date that you receive this decision or
to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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. Filing a civil action will terminate the
administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
March 3, 1999
__________________ _______________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 Appellant stated that his former supervisor informed him that, unless
he had experience at the Command Center, he could not expect to receive
the maximum performance rating and career advancement. Another Corporal
in the Police Branch also testified that Command Center experience was
important to career advancement.
2 A union member, who is also a Corporal in the Police Branch and was
taking notes during the meeting, stated that the Chief expressed that
appellant and certain others in the Police Branch were only interested
in complaining and causing trouble.
3 While the AJ did not address appellant's age discrimination claim,
we find that appellant presented no evidence to support his allegation
that but for his age, he would not have been subjected to the disputed
agency actions. Bell v. Department of Veterans Affairs, EEOC Request
No. 05950863 (Sept. 17, 1997); Loeb v. Textron, Inc., 660 F.2d 1003
(1st Cir. 1979).