07A10065
08-08-2002
Floyd K. Mitchell, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Floyd K. Mitchell v. Department of the Army
07A10065
August 8, 2002
.
Floyd K. Mitchell,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 07A10065
Agency No. DAY99AR0160E
Hearing No. 280-99-4350X; 280-99-4368
DECISION
Following a decision by an EEOC Administrative Judge both the agency
and complainant filed separate, timely appeals with the Commission.
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts and consolidates
these appeals under the docket number referenced above. Complainant
alleged that he was discriminated against in violation of Title VII of
the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq. on the basis of his race (African-American) when:
on or about August 27, 1997, he received his Senior Civilian Evaluation
Performance Report which referred to him as a senior supervisor instead
of senior manager; and
on or about August 27, 1997, he learned he had not been selected for
promotion to the position of GS-0205-14 Military Personnel Management
Officer.
On November 6, 1997, complainant, a GS-13 Assistant Military Personnel
Management Officer in the Soldier and Family Support Directorate in
St. Louis, Missouri, filed a formal complaint of discrimination.
On December 4, 1997, the agency issued a decision accepting (2)
for investigation and dismissing (1) for failure to state a claim.
By decision dated February 25, 1999, the Commission reversed the agency's
dismissal of (1) and remanded the complaint to the agency for further
processing consistent with our regulations. Mitchell v. Department of
the Army, EEOC Appeal No. 01981742 (February 25, 1999). Following an
investigation, complainant requested a hearing by an EEOC Administrative
Judge. On February 20, 2001, after a hearing, the EEOC Administrative
Judge issued Findings of Fact and Conclusions of Law finding that the
preponderance of the evidence failed to establish discrimination.
The Administrative Judge then addressed comments made by a senior
management official involved in the discrimination complaint (RMO) and
ordered the agency to train and take appropriate disciplinary action
against RMO. By letter dated April 5, 2001, the agency issued a Final
Order refusing to implement the Administrative Judge's order to train
and discipline RMO, and simultaneously initiated the instant appeal.
Complainant filed his own appeal arguing not only that RMO should receive
training and discipline, but that the Administrative Judge erred in
finding no discrimination.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings
by an Administrative Judge will be upheld if supported by substantial
evidence in the record. Substantial evidence is defined as �such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.� Universal Camera Corp. v. National Labor
Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding
regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982).
An Administrative Judge's conclusions of law are subject to a de novo
standard of review, whether or not a hearing was held.
To prevail in a disparate treatment claim 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, 120 S.Ct. 2097
(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).
We affirm the Administrative Judge's finding of no discrimination
with respect to complainant's Senior Civilian Evaluation Performance
Report which referred to complainant as a senior supervisor instead of
senior manager. Complainant asserts that supervisors manage rank and
file staff, while managers manage supervisors. As a manager who manages
supervisors, complainant contends that his duties as a manager are not
fully represented by the term supervisor. The substantial evidence in
the record supports the Administrative Judge's conclusion that the named
management official (Colonel) did not possess the intent to discriminate
against complainant when referring to complainant as a supervisor instead
of manager in the Performance Report. Rather, Colonel asserts that he
used the terms supervisor and manager interchangeably and that he did
not intend to reduce complainant's evaluation by referring to him as a
supervisor. The record contains no evidence that Colonel's explanation
is unworthy of belief or that it is a pretext for race discrimination.
We also affirm the Administrative Judge's finding of no discrimination
with respect to complainant's non-selection for promotion to the position
of GS-0205-14 Military Personnel Management Officer. The selecting
official (RMO) was, at the time of the selection, the agency's chief
of staff. Complainant produced evidence at the hearing of RMO's
racially tainted sentiments. However, we are unable to attribute
complainant's non-selection to RMO's racial animus. The selection at
issue was controlled by the agency's selection panel which, without RMO's
involvement, recommended the most highly rated candidate for selection.
There is no dispute that, upon a tabulation of the ratings given by
the 5-member selection panel, the selectee (Caucasian) received the
highest score. RMO essentially �rubber-stamped� the recommendation of
the selection panel. Complainant offers no evidence that the selection
panel, which interviewed the seven most highly qualified applicants for
the position, was motivated by race-based animus.
We turn now to the issue of whether the Administrative Judge erred in
ordering training and discipline. The Administrative Judge held, in
pertinent part that:
While the undersigned concludes that complainant has not established
discrimination regarding either the issue of his non-selection or the
issue of his performance appraisal, I nonetheless conclude that the
stereotypical and racially biased comments by [RMO] cannot go unaddressed.
* * *
The agency is ordered to take appropriate disciplinary action against
[RMO] and provide [her] with proper diversity and sensitivity training.
While frequently incidents of this ilk require only diversity/sensitivity
training, because of (1) the egregious nature of [RMO's] remarks;
(2) her high level and supervisory authority within the agency;
(3) the pervasive nature of the conduct; and (4) RMO's clear lack of
acknowledgment of her conduct and/or remorse for the same, I conclude
that discipline is warranted.
We have reviewed the record relative to the concerns raised by the
Administrative Judge. The Administrative Judge credited testimony
which attributed various statements demonstrating discriminatory
animus to RMO. We note that these statements were made over time in a
variety of different contexts to several different agency personnel.
These statements were not made during the selection process itself.
RMO was alleged to have stated that: (a) most if not all senior Black
civilians in the command were worthless and she wanted to get rid of them
all; (b) �the Blacks� kept the Command from doing what it wanted to do;
(c) she told non-African American employees that, if they were Black,
they would have received promotions; (d) an agency attorney was �that
little Jewish guy�; and (f) Blacks are holding the agency hostage,
and now is not a good time (to seek promotion) because the N.A.A.C.P.
is stirring things up.
Commission regulations provide that each agency shall conduct a continuing
campaign to eradicate every form of prejudice or discrimination;
review, evaluate and control managerial and supervisory performance
so as to ensure equal opportunity and provide training to assure their
understanding of equal opportunity; and, take appropriate disciplinary
action against employees who engage in discriminatory practices.
29 C.F.R. � 1614.102(a)(3) - (6). In promulgating this policy, the
Commission clearly stated that it could not discipline or order the
discipline of employees directly. 52 Fed. Reg. 41920, 41921 (October
30, 1987). Further, the Commission's regulations regarding relief,
including training, are applicable when �an agency, or the Commission,
finds ... that an applicant or employee has been discriminated against
...� 29 C.F.R. � 1614.501(a). Accordingly, we vacate the Administrative
Judge's order only insofar as it ordered the agency to train and
discipline RMO because we find that this portion of the Administrative
Judge's order exceeded her authority.
Our holding notwithstanding, we remind the agency of its on-going
obligations to conduct a continuing campaign to eradicate prejudice
and to take appropriate disciplinary action against employees who
engage in discriminatory practices. 29 C.F.R. � 1614.102(a)(3), (6).
Compliance with these regulations, which is not contingent upon a finding
of discrimination, could have precluded the Administrative Judge's focus
on training and discipline for RMO and rendered this appeal moot.
For the reasons set forth above, and after careful consideration of
the record, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM the agency's Final Order in so doing, we vacate
the Administrative Judge's order to discipline and train RMO.
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
August 8, 2002
__________________
Date