Alain H. Burchett, Complainant,v.Daniel R. Glickman, Secretary, Department of Agriculture (U.S. Forest Service), Agency.

Equal Employment Opportunity CommissionJan 21, 2000
01975739 (E.E.O.C. Jan. 21, 2000)

01975739

01-21-2000

Alain H. Burchett, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture (U.S. Forest Service), Agency.


Alain H. Burchett v. Department of Agriculture

01975739

January 21, 2000

Alain H. Burchett, )

Complainant, )

) Appeal No. 01975739

v. ) Agency No. 95-1127

)

Daniel R. Glickman, )

Secretary, )

Department of Agriculture )

(U.S. Forest Service), )

Agency. )

)

DECISION

Complainant timely initiated an appeal of a final agency decision (FAD)

concerning his complaint of unlawful employment discrimination on the

bases of reprisal (prior EEO activity), and physical disability (cancer

and Hepatitis B), in violation of Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. � 2000e et seq. and the Rehabilitation Act

of 1973, as amended, 29 U.S.C. � 791, et seq.<1> Complainant alleges

he was discriminated against when: (1) he was issued an "unacceptable"

rating for the performance period June 28 through September 18, 1995;

(2) he was subjected to a hostile work environment from August 21

until October 6, 1995; and (3) he was not selected for a permanent GS-7

Archaeologist position. The appeal is accepted in accordance with EEOC

Order No. 960.001. For the following reasons, the agency's decision

is AFFIRMED.

The record reveals that during the relevant time, complainant was a term

appointee Archaeologist GS-5, at the agency's Asheville, North Carolina

facility. Complainant alleged that his supervisor (no disability,

no prior EEO activity) subjected him to a hostile work environment,

which included foul language and demeaning treatment. For example,

complainant alleged that in April 1993, his supervisor stated to him,

upon learning he had tested positive for Hepatitis, "[i]f I get Hepatitis

from you, I'll kill you."

Complainant alleged that in December 1994, he approached a Personnel

Specialist and his second level supervisor in order to complain about the

treatment he received from the supervisor. According to complainant,

once he complained, he received intense scrutiny from his supervisor

regarding his performance. Complainant alleged that this led to

his placement on a Performance Improvement Plan (PIP) in June 1995.

At the end of the PIP, complainant received an "unacceptable" rating

on his performance period. Until that time, the supervisor had rated

him "fully successful." Complainant also alleged that in June 1995,

he applied for a permanent Archaeologist position, GS-7. According to

complainant, once the supervisor learned complainant was the only veteran

on the list of eligibles, he had the vacancy canceled.

Believing he was a victim of discrimination, complainant sought EEO

counseling and, subsequently filed a complaint on November 13, 1995.

At the conclusion of the investigation, the agency issued a final

decision.

The FAD concluded that complainant failed to establish a prima facie

case of disability discrimination in that he failed to establish that

he had a physical or mental impairment which substantially limited a

major life activity. The agency also found that complainant had not

established that similarly situated employees not in his protected

classes were treated differently than he was under similar circumstances.

However, the agency did find that complainant raised an inference of

discrimination with respect to his claim of reprisal. The agency found

that prior to his complaints to management, complainant received "fully

successful" ratings. After his complaint to personnel and management in

late 1994, however, his supervisor rated his performance "unacceptable."

The agency also found that it had articulated legitimate,

nondiscriminatory reasons for its actions. Namely, complainant received

an "unacceptable" rating because he was not timely with his assignments,

and did not complete assignments pursuant to standards he had met in

the past. The supervisor testified that other co-workers complained

that complainant did not complete his work, and seemed unaware of simple

archaeological methods. The supervisor also averred that complainant

did not complete reports in accordance with acceptable archaeological

standards.

Complainant's co-workers corroborated the supervisor's testimony that

complainant had performance problems. For instance, their affidavits

revealed that complainant failed to identify artifacts, and did not

complete tests when he claimed he had done so. These affidavits were

supported with specific examples and documentary evidence that show

co-workers complained about complainant's work performance to the

supervisor.

With respect to complainant's claim of hostile work environment,

the agency found that complainant failed to specify any instances of

harassment during the time period identified by the agency. Rather,

the agency found that the supervisor's statement about complainant's

Hepatitis, which is corroborated by witnesses, occurred in 1993.

Finally, with respect to complainant's claim that he was not selected

due to his disability and prior EEO activity, the agency found that the

vacancy announcement was canceled due to conflicts that existed between

management and personnel regarding the job criteria for the position.

Complainant's second level supervisor (no disability, no prior EEO

activity) maintained that confusion regarding evaluation criteria and

budget problems were the reasons for the cancellation of the vacancy.

According to the Personnel Management Specialist's affidavit, the

supervisor approached her and stated that the selective placement

factors, as announced, were not what he asked personnel to announce.

She stated the supervisor advised that the selective placement factors,

as listed, would not enable adequate distinction of the applicants'

qualifications. Therefore, the supervisor requested that personnel

re-announce the vacancy.

In his affidavit, the supervisor averred that he spoke with personnel

about the evaluation criteria once he determined that applicants did

not have a clear knowledge of the duties of the position. He recalled

asking the personnel specialists whether they could have applicants send

in additional information once they determined what were the criteria

of the position. Once personnel determined that was not an appropriate

course of action, they decided to re-announce the position instead.

The supervisor maintained that the applicants were informed the position

would be re-evaluated and re-announced. He added that the position was

ultimately not filled due to budgetary restraints.

When questioned about the cancellation of the vacancy, the supervisor

averred he was aware complainant had applied for the position. He also

believed only one applicant, not complainant, had properly addressed

the criteria for the position.

On appeal, complainant contends that the agency failed to consider a

number of his arguments. He argues the proximity in time between the

"unacceptable" rating and his complaints about his supervisor, was

not just a coincidence. Complainant argues that those co-workers who

discussed his performance did so because they feared retaliation from

the supervisor. He also maintains that the supervisor held hostility

towards his disability from 1993 until 1995, not simply the time defined

by the agency. The agency requests that we affirm its FAD.

After a careful review of the record, based on McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973); Prewitt v. United States Postal

Service, 662 F.2d 292 (5th Cir. 1981), and Hochstadt v. Worcester

Foundation for Experimental Biology, Inc., 425 F. Supp. 318

(D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell

Douglas to retaliation cases), we agree with the agency that complainant

failed to prove that the agency's reasons for its actions were a pretext

for discrimination.

To begin with, complainant maintained that he suffered the adverse

actions once he complained to personnel and his second level supervisor

about the work environment. We find, however, insufficient evidence

in the record that at that time, complainant claimed the treatment was

due to a prohibited basis, such as his disability. As such, we are not

persuaded that complainant engaged in EEO activity when he complained

to personnel and management in late 1994.

Also, despite the proximity in time between complainant's complaints to

management and his rating, we find evidence in the record that complainant

had some performance problems before he complained to management.

The record also supports the agency's position that complainant did

not perform well during the time he received the unacceptable rating.

Affidavits and other documentary evidence in the record reveal that

complainant failed to identify artifacts on field visits, and failed to

complete tests. One co-worker averred that upon review of complainant's

field work, he found sites and artifacts where complainant found none.

Complainant did not directly dispute this statement, other than to say

that co-workers committed the same offenses, but were not found deficient

in their performance. As such, we are not persuaded that complainant's

performance rating was based on reprisal for prior EEO activity.

With respect to complainant's claim of disability discrimination, we

agree with complainant that the supervisor's statement in regard to his

health was unacceptable. However, complainant has not shown a sufficient

nexus between the supervisor's statement and complainant's performance

rating or non-selection, both of which occurred approximately two years

after the statement was made. Also, upon review of complainant's claim

that he was not selected for the position due to discrimination, we

find insufficient evidence in the record which proves that the agency's

reasons for canceling the vacancy was due to complainant's disability

and/or retaliation.

After a review of complainant's chronological report of treatment he

received from the supervisor as background evidence, we find insufficient

evidence that the treatment he received from the supervisor was based on a

discriminatory animus, rather than a personality dispute. Evidence in the

record supports complainant's position that the supervisor may have used

foul language and was overbearing at times, however, none of those who

submitted affidavits reported that his behavior was viewed as belittling,

as claimed by complainant. Co-workers opined that they did not believe

complainant was singled out for poor treatment.

Therefore, after a careful review of the record, including complainant's

contentions on appeal, and arguments and evidence not specifically

addressed in this decision, we AFFIRM the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (S1199)

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:

January 21, 2000

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_________________________

_________________________

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to

all Federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply the

revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable,

in deciding the present appeal. The regulations, as amended, may also be

found at the Commission's website at WWW.EEOC.GOV.