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.