01983215
01-14-2000
Arthur Walker, Complainant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, (Food and Drug Administration), Agency.
Arthur Walker v. Department of Health and Human Services
01983215
January 14, 2000
.
Arthur Walker,
Complainant,
v.
Donna E. Shalala,
Secretary,
Department of Health and Human Services,
(Food and Drug Administration),
Agency.
Appeal No. 01983215
Agency No. FDA-273-95
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
basis of reprisal (prior EEO activity), in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1>
Complainant alleges he was retaliated against when: (1) on May 25, 1995,
he was removed from his worksite by the Federal Police; (2) on May 24,
1995, his supervisor's (CS) assessment of his performance was unfair;
(3) on May 24, 1995, CS falsely accused him of taking extensive breaks and
being late for meetings; and (4) on April 6, 1995, his request for annual
leave was denied by CS although he had sufficient leave available. The
appeal is accepted in accordance with EEOC Order No. 960.001. For the
following reasons, the FAD is AFFIRMED AS CLARIFIED.
The record reveals that during the relevant time, complainant was
employed as a GS-7-4 Physical Science Technician in the Drug Chemistry
Branch at the agency's Northeast Regional Laboratory in Brooklyn, New
York. Complainant alleged that agency management officials knew of his
prior EEO activity at the time the alleged acts of retaliation occurred,
and this has not been disputed by the agency. Believing he was a victim of
retaliation, complainant sought EEO counseling and, subsequently, filed
a complaint on July 25, 1995. At the conclusion of the investigation,
complainant requested that the agency issue a FAD.
The FAD concluded that complainant failed to establish a prima facie
case of retaliation regarding allegation (1), because he presented
no evidence that he was, in fact, removed from the worksite by the
Federal Police on the date that he alleged. The FAD noted that in
April of 1995, the Laboratory Director threatened to have complainant
removed from the worksite, but found that the alleged threat did
not rise to the level of an adverse employment action or harassment
under Title VII. Regarding allegations (2) and (3), the FAD found that
complainant failed to establish a prima facie case of retaliation, as
neither the discussion he had with CS regarding his unsatisfactory job
performance nor the allegation that CS falsely accused him of tardiness
and extensive breaks constituted an adverse employment action. The FAD
found that, even assuming complainant established a prima facie case
of discrimination in allegations (2) and (3), the agency articulated a
legitimate, nondiscriminatory reason for its actions, namely, that CS
met with complainant to discuss incorrect written worksheets, and took
the occasion to discuss with complainant his frequent tardiness and the
length of time he spent engaging in non-work activities, in an attempt
to improve his job performance. However, regarding allegation (4), the
FAD found that complainant established a prima facie case of reprisal
when his request for leave was denied, as CS knew of complainant's prior
EEO activity, and the adverse action followed the protected activity in
such time that a retaliatory motive could be inferred.
However, the FAD found that regarding allegation (4), CS articulated
a legitimate, nondiscriminatory reason for her action, namely, that
she initially denied the leave request as she received erroneous
information that complainant had a negative annual leave balance of
three hours. However, while CS ultimately found that complainant had
sufficient leave, she discovered that complainant had incomplete sample
analysis worksheets which needed to be submitted that day and denied
leave on that basis. The FAD found that it was within CS's managerial
discretion to deny complainant's leave while she had uncompleted work to
perform. The FAD further found that the agency's reason for its action
was not a pretext for discrimination. Neither complainant nor the agency
have made contentions on appeal.
To establish a prima facie case of reprisal discrimination, complainant
must show that: (1) he engaged in protected activity; (2) the alleged
discriminating official was aware of the protected activity; (3) he was
adversely affected by an action of the agency contemporaneously with
or subsequent to the protected activity; and (4) there is a causal
connection between the protected activity and the adverse employment
action. Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425
F. Supp. 318, 324 (D. Mass.); aff'd, 545 F.2d 222 (1st Cir. 1976). After
a careful review of the record, the Commission agrees with the FAD
that complainant failed to establish a prima facie case of reprisal
discrimination regarding allegation (1), as he presented no evidence
that he suffered the adverse action alleged.
Regarding allegations (2) and (3), we note that the FAD found that
complainant failed to establish a prima facie case of retaliation as he
suffered no adverse employment action. However, as we agree with the FAD
that the agency articulated a legitimate, nondiscriminatory reason for
CS's [PAGE 3] discussion with complainant, namely, his unsatisfactory
job performance, we proceed directly to consideration of whether the
agency's articulated reason was a pretext for retaliation. Parnofiello
v. Department of Justice, EEOC Document No. 01966451 (June 30, 1999);
United States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
714-17 (1983). After consideration of the record, we agree with the FAD's
finding that complainant has failed to meet his burden of establishing
that CS's articulated reason is a pretext for retaliation, as the record
contains no evidence that CS's allegations regarding complainant's job
performance were inaccurate or false, or that other employees under
CS's supervision were not similarly counseled. EEOC Compliance Manual,
Section 8 (Retaliation) at 8-13 - 8-14 (May 20, 1998).
Finally, the Commission agrees that the agency articulated a
legitimate, nondiscriminatory reason for denying complainant's leave
request in allegation (4), and that this reason is not a pretext for
discrimination. The Commission concurs with the FAD's finding that
CS exercised valid managerial discretion in denying complainant's
request for annual leave that was not based on retaliatory animus. We
further agree with the FAD that the actions of management as alleged
by complainant were not sufficiently severe or pervasive to constitute
harassment under Title VII. Harris v. Forklift Systems, Inc., 510 U.S. 17
(1993). Therefore, after a careful review of the record and arguments
and evidence not specifically addressed in this decision, the FAD is
AFFIRMED AS CLARIFIED.
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 [PAGE 4] 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 14, 2000
__________________
Date
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.