0120064278
06-06-2007
Donald R. Thomas, Complainant, v. Pete Geren, Acting Secretary, Department of the Army, Agency.
Donald R. Thomas,
Complainant,
v.
Pete Geren,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01200642781
Agency No. ARHOOD05MAY08856
DECISION
Complainant appeals to the Commission from the agency's June 12, 2006
decision finding no discrimination. Complainant alleges that he was
subject to a hostile work environment in reprisal for prior protected
EEO activity when:
1. From April 13, 2005 to May 31, 2005, complainant was denied a secret
security clearance which resulted in complainant having to be escorted
into secure work areas to perform essential duties of his position.
2. On April 27, 2005, complainant learned that he was not selected for
a WG-10, Wire Communications Cable Splicer position.
3. On June 24, 2005, complainant learned that the Director of Information
Management had reclassified complainant's position to that of a
WG-2504-10 Wire Communications Cable Splicer to defeat complainant's
earlier complaint of nonselection.
4. On June 24, 2005, complainant was told by his supervisor that if
the newly reclassified WG-2504-10 Wire Communications Cable Splicer
positions were upgraded to WG-1, one of the three employees to occupy
these positions would "be going home," which complainant understood as
a threat that he would be terminated from his position as a WG-10.2
We find that the agency has articulated legitimate, nondiscriminatory
reasons for its actions. Regarding claim 1, management officials asserted
that complainant's position did not require a security clearance because
complainant had "worked in the Outside Plant" and required access to
secure areas only about once per month, which was not sufficiently
frequent to warrant a security clearance since he could be escorted
when this access was required. Management official also asserted that
complainant's coworker, who was also a WG-2504-10, Wire Communications
Cable Splicer position, had a security clearance only because it was
granted by the Army Reserve for the performance of his reservist duties.
In terms of claim 2, management officials stated that complainant was
not selected for the WG-2504-10, Wire Communications Cable Splicer
position because he was not the best qualified for the position.
Management officials stated that the selectee ranked higher on the
selection matrix than complainant because he had more experience.
With respect to claim 3, management officials asserted that the creation
of the Wire Communication Cable Splicer position was "an in house effort
to merge two duties (cable splicer and line installer/repairer) for better
efficiency. Management officials argued that the personnel with these two
job descriptions were already, on a routine basis, [performing] duties
that crossed both job descriptions." Management stated that statements
from complainant and a management official confirmed that these changes
had been contemplated for several years. Management officials reported
that the positions descriptions were revised to align them with the job
functions actually being performed by the two line installer/repairer
positions and two cable splicer positions because all four positions
were actually performing the same job functions, despite having different
job titles and descriptions.
As to claim 4, management officials denied that it threatened
complainant's employment. Rather, management officials stated that
they were trying to ensure that the revision of the four positions was
done in a manner that would not require any of the existing employees to
compete for their positions, since it could not be guaranteed that they
would be the most qualified or would meet the physical ability criteria
of a competed position, and management wanted to retain them in their
positions. Management officials argued that there was no intent to
upgrade any of the positions to the WG-11 level because doing so would
require that the positions be opened to competition.
Complainant failed to rebut the agency's articulated legitimate,
nondiscriminatory reasons for its actions. Furthermore, complainant
failed to show that his qualifications for the WG-2504-10, Wire
Communications Cable Splicer position were plainly superior to the
selectee's qualifications or that the agency's action was motivated
by discrimination. Moreover, complainant has failed to show, by a
preponderance of the evidence, that he was discriminated against on the
basis of reprisal or that he was subjected to discriminatory harassment.
The agency's decision finding no discrimination is AFFIRMED.
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
June 6, 2007
__________________
Date
1 Due to a new data system, your case has been redesignated with the
above referenced appeal number.
2 Complainant is not challenging the agency's prior dismissal of a
breach of settlement claim on the grounds that it was identical to a
claim already processed by the agency.
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0120064278
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120064278