0120073513
01-10-2008
Andrew C. Henderson, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Andrew C. Henderson,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120073513
Hearing No. 480-2006-00438X
Agency No. 056220401971
DECISION
On July 18, 2007, complainant filed an appeal from the agency's June
27, 2007, final order 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 order.
At the time of events giving rise to this complaint, complainant worked
as the Deputy Director, GS-2003-13, of the Fleet Support Division, at the
Marine Corps Logistics Base, Barstow, California. On September 26, 2005,
complainant filed an EEO complaint alleging that he was discriminated
against on the basis of race (African-American) when the Lieutenant
Colonel (Caucasian) mitigated a proposed 14 day suspension to a 6 day
suspension for "Conduct Unbecoming a Federal Supervisor," effective
April 18-23, 2005.
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 timely
requested a hearing. Although given an opportunity to respond to
the agency's March 30, 2007 motion for a decision without a hearing,
complainant chose not to do so. The AJ issued a decision without a
hearing on May 17, 2007 in favor of the agency.
In his decision, the AJ initially denied the agency's motion to dismiss
the complaint for failure to state a claim. The AJ then found that
complainant failed to establish a prima facie case of discrimination. The
AJ further found that the agency articulated legitimate, nondiscriminatory
reasons for the discipline, namely, he was suspended for "Conduct
Unbecoming a Federal Supervisor" subsequent to a finding that complainant
had retaliated against a former employee based on his prior EEO activity,
by providing a negative job reference. The AJ then found that complainant
did not present persuasive evidence that this reason was a pretext for
discrimination. The agency subsequently issued a final order adopting
the AJ's finding that complainant failed to prove that he was subjected
to discrimination as alleged. On appeal, complainant asserts that he has
been subjected to race-based discrimination, and he reiterates his version
of the facts. The agency requests that we affirm the final order.
The allocation of burdens and order of presentation of proof in a
Title VII case alleging disparate treatment discrimination is a three
step procedure: complainant has the initial burden of proving, by a
preponderance of the evidence, a prima facie case of discrimination;
the burden then shifts to the employer to articulate some legitimate,
nondiscriminatory reason for its challenged action; and complainant must
then prove, by a preponderance of the evidence, that the legitimate reason
offered by the employer was not its true reason, but was a pretext for
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Believing the evidence presented by complainant, and drawing all
justifiable inferences in his favor, we agree with the AJ's conclusion.
Although complainant clearly believes his race was a factor in the
decision to suspend him, he has not provided any evidence that he was
treated disparately because of his race, and has made no effort to either
identify disputed facts in the record or to demonstrate that there is a
dispute by producing evidence which tends to disprove the facts asserted
by the moving party. See EEOC Management Directive 110, ch. 7 p. 15
(Nov. 9, 1999). As a result, complainant has failed to establish that
there is a genuine issue as to the facts which, if true, would suffice
to establish a prima facie case of discrimination on the basis alleged.
After a careful review of the record, the Commission finds that the
AJ's decision without a hearing was appropriate, as no genuine issue
of material fact is in dispute.1 See Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003). Therefore, we AFFIRM the
agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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
January 10, 2008
__________________
Date
1 In this case, we find that the record was adequately developed for
the AJ to issue a decision without a hearing.
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0120073513
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120073513