01A20922_r
08-21-2002
Urban Q. Garrett, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Urban Q. Garrett v. Department of the Army
01A20922
August 21, 2002
.
Urban Q. Garrett,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A20922
Agency No. BOAHFO0011A0390
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful 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 accepted pursuant
to 29 C.F.R. � 1614.405.
The record reveals that during the relevant time, complainant was
employed as a Machine Tool Operator, WG-9, at the agency's Anniston Army
Depot, Manufacturing Division, Cost Center 52EG, Anniston, Alabama.
Complainant sought EEO counseling and subsequently filed a formal
complaint on December 18, 2000, alleging that he was discriminated
against on the basis of reprisal for prior EEO activity when: (1) he was
constantly watched; (2) denied annual leave; and (3) on September 24,
2000, he was loaned out to Building 513 as a supply clerk<1>.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its FAD, the agency determined that complainant failed to establish
a prima facie case of retaliation. The agency determined that it
is undisputed that complainant's second line supervisor and work
leader, the responding management officials in the instant complaint,
were also involved in complainant's prior EEO activity. However,
the agency concluded that complainant failed to demonstrate that he
suffered any harm and/or that he was singled out for disparate treatment.
The agency further found assuming, arguendo, that complainant established
a prima facie case of retaliation, the agency articulated a legitimate,
nondiscriminatory reasons for its actions, regarding claim (1),
complainant's work leader, who was required to assign jobs and monitor
work habits, had observed complainant spending too much time away from
his work area and even though complainant was verbally abusive towards
him, complainant was not counseled or disciplined. Regarding claim
(2), the agency further noted that complainant was merely questioned
about his request for annual leave during the December holiday season
because he had gotten into a pattern of using leave during this period
when employees with the most leave had leave priority. In regard to claim
(3), the agency concluded that complainant volunteered to work in Building
513 because there was not sufficient work to support all employees in his
work area and that his reassignment back to his work area was made shortly
after he changed his mind. Finally, the agency found that complainant
failed to establish that it was more likely than not that the agency's
articulated reasons were more likely than not a pretext for retaliation.
Complainant raised no new contentions on appeal.
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Commission determines that the evidence supports a finding that
the agency articulated legitimate, non-discriminatory reasons for its
employment actions. Complainant has not demonstrated that the agency's
articulated reasons for its actions were a pretext for discrimination.
Therefore, the agency's finding of 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
August 21, 2002
__________________
Date
1The claims are herein identified as claims 1-3, for purposes of clarity,
although the
agency has designated them differently in its FAD.