0120072093
12-26-2007
James Fordham, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
James Fordham,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120072093
Hearing No. 570-2006-00259X
Agency No. AEEUGRAF05FRB06812
DECISION
On March 23, 2007, complainant filed an appeal from the agency's March
6, 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.
Complainant filed an EEO complaint alleging that he was discriminated
against on the bases of race (African-American), color (Black) and
retaliation (filing a Congressional complaint which raised skin color)
when his Supervisor issued him a letter of termination during his
probationary period of employment on February 7, 2005, which resulted
in his decision to resign the next day.
The record reflects that on February 22, 2004, complainant was converted
from temporary employment to a career conditional appointment in
the position of Operations Specialist with the Directorate of Plans,
Training, Mobilization and Security (DPTMS) within the 100 Area Support
Group in Grafenwoehr, Germany ("facility"). The record also reflects
that this position required complainant to obtain and maintain the
designated security clearance, and as such, he was required to serve
for a one-year period as a probationary employee. While serving in
his probationary status, complainant was involved in two (2) instances
of misconduct which resulted in his being titled as a subject of an
investigation by Military Police. The record further reflects that
on September 4, 2004, complainant drove to his estranged wife's house,
and had a physical confrontation with her over a video camera. As such,
complainant was titled by the Military Police with Communicating a Threat
in September of 2005; complainant's wife also obtained a restraining order
against complainant from the German Civil Court. On January 27, 2005,
complainant was titled with Simple Assault after a physical assault at
the facility with a Master Sergeant. After the second incident, the
Officer in Charge (African-American) of the Graefenwoehr Law Center
rendered the legal opinion that there was adequate evidence for the
Military Police to title complainant with the offense of Simple Assault
- Consummated by a Battery. The record further reflects that the first
incident caused complainant's interim security clearance to be locally
suspended by the facility's Chief Security Officer, who warned complainant
that further misconduct would result in the withdrawal of his interim
security clearance. After the second incident, the interim security
clearance was not renewed by the facility's new Chief Security Officer.
The agency took no official action against complainant after the first
incident, but, after the second incident, the record indicates that
management lost confidence in complainant's judgment and decision-making
abilities. As such, complainant's third-line supervisor (S3) notified
complainant that he would be terminated during the probationary period.
Complainant requested, and was allowed, to resign for personal reasons
with no negative entry in his personnel file.
Believing he was the victim of discrimination, complainant sought EEO
counseling and filed the aforementioned formal EEO complaint. 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. The AJ assigned to the case determined that the complaint
did not warrant a hearing and over the complainant's objections, issued a
decision without a hearing on February 27, 2007. 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.
The AJ initially found that complainant's allegations of discrimination
were conclusory statements, with no evidence that race played a factor
in any decision by agency management to terminate complainant during
his probationary period. The AJ then found that complainant failed
to establish a prima facie case of race or color based discrimination,
as he failed to demonstrate the agency's employment actions (proposed
termination followed by his resignation) were administered under
a situation where an inference of discrimination could be drawn.
The AJ noted that complainant was involved in two (2) incidents which
resulted in the suspension of his local security clearance and caused
his managers to question complainant's continued employment while he
was in the probationary period. The AJ also noted that complainant was
notified of his pending termination and voluntarily resigned.
Regarding the issue of reprisal1, the AJ found that complainant failed to
establish a prima facie case. The AJ found that assuming, arguendo, that
complainant engaged in prior EEO activity and was subjected to adverse
treatment, there was no showing that the adverse action followed the
protected activity such that an inference of retaliation could be made.
The AJ found that the events which led to the proposed termination action
occurred prior to the filing of his EEO and congressional complaint,
and there was no suggestion in the record that the agency's proposed
termination was predicated on anything other than complainant's
involvement in the events at issue. As such, the AJ found that
complainant failed to show by a preponderance of the evidence that
he was unlawfully discriminated against by the agency. The agency's
final order adopted the AJ's findings. On appeal, complainant alleged
that the AJ erred in failing to allow him to present evidence of his
retaliation allegation at a hearing. Complainant also alleged that the
allegation of retaliation for having filed a congressional inquiry of his
treatment by agency officials warranted a hearing. The agency responded
to complainant's appeal, requesting that the Commission uphold the AJ's
decision.
In rendering this appellate decision we must scrutinize the AJ's legal
and factual conclusions, and the agency's final order adopting them,
de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on
an appeal from an agency's final action shall be based on a de novo
review . . ."); see also EEOC Management Directive 110, Chapter 9,
� VI.B. (November 9, 1999). (providing that an administrative judge's
"decision to issue a decision without a hearing pursuant to [29 C.F.R. �
1614.109(g)] will be reviewed de novo"). This essentially means that we
should look at this case with fresh eyes. In other words, we are free
to accept (if accurate) or reject (if erroneous) the AJ's, and agency's,
factual conclusions and legal analysis - including on the ultimate fact
of whether intentional discrimination occurred, and on the legal issue
of whether any federal employment discrimination statute was violated.
See id. at Chapter 9, � VI.A. (explaining that the de novo standard of
review "requires that the Commission examine the record without regard to
the factual and legal determinations of the previous decision maker,"
and that EEOC "review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties,
and . . . issue its decision based on the Commission's own assessment
of the record and its interpretation of the law").
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. 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. 29 C.F.R. �
1614.109(g). This regulation is patterned after the summary judgment
procedure set forth in Rule 56 of the Federal Rules of Civil Procedure.
The U.S. Supreme Court has held that summary judgment is appropriate
where a court determines that, given the substantive legal and
evidentiary standards that apply to the case, there exists no genuine
issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). In ruling on a motion for summary judgment, a court's
function is not to weigh the evidence but rather to determine whether
there are genuine issues for trial. Id. at 249. The evidence of the
non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. Based on a
thorough review of the record and the contentions on appeal, we find there
are no genuine issues of material fact in dispute, and therefore, the AJ
properly issued a decision without a hearing.2 See Petty v. Department
of Defense, EEOC Appeal No. 01A24206 (July 11, 2003); Murphy v. Dept. of
the Army, EEOC Appeal No. 01A04099 (July 11, 2003).
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
She must generally establish a prima facie case by demonstrating that
she 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).
Examining the facts in a light most favorable to complainant, we find
that, even assuming, arguendo, that complainant established a prima facie
case of race, color or retaliation discrimination, the agency articulated
legitimate, nondiscriminatory reasons for its actions. We concur with
the AJ's finding that the record reflects that complainant received the
proposed notice of termination (followed by his resignation) because he
was involved in incidents with his estranged wife and a Master Sergeant
which resulted in the suspension of his local security clearance and
caused his managers to question his continued employment during his
one-year probationary period. The record indicates that complainant was
notified of his proposed termination, and he voluntarily resigned such
that there would be no negative entry on his personnel file. We further
find that complainant failed to proffer evidence which establishes that
the agency's articulated reasons for its actions were more likely than not
pretextual in nature. In so finding, we find no evidence in the record
which suggests that the agency took any actions against complainant due
to his race or color. Further, we concur with the AJ's finding that
there is no evidence in the record which would demonstrate that the
agency's proposed termination action was predicated on anything other
than complainant's involvement in the events with his estranged wife and
a Master Sergeant, which led to action by the facility's Military Police.
The record indicates that complainant filed a congressional complaint
on January 25, 2005 which raised color as a basis of discrimination
regarding the actions by the agency following the first incident; however,
the facility's Military Police titled complainant with Simple Assault
Consummated with a Battery on January 27, 2005, following a physical
altercation with the Master Sergeant; complainant was allowed to resign
on February 7, 2006. As such, we find no basis to conclude that the
agency's actions were pretextual in nature.
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, 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
____12/26/07_______________
Date
1 We note that complainant's allegation of reprisal was that due to his
forwarding the instant complainant to a member of Congress, he was given
the memorandum proposing his termination. However, the agency argued
in its Motion for Summary Judgment that any theory that the termination
was as a result of the congressional complaint was in conflict with the
evidence, including the testimony of an agency employee who stated that
S3 contacted her for advice after the second Military Police titling in
January of 2005 to discuss the possibility of terminating complainant
during the probationary period.
2 We note that the agency submitted a Motion for Summary Judgment to
the AJ on August 15, 2006. Complainant was given 15 days to respond
to the agency's Motion. Neither the AJ, nor the agency, received any
response from complainant or his counsel to the agency's Motion prior
to the time the AJ issued his decision on February 23, 2007.
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0120072093
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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