01991127
10-16-2001
Barrett Glen Malko, Complainant, v. Marc B. Nathanson, Chairman, Broadcasting Board of Governors, International Broadcasting Bureau, Agency.
Barrett Glen Malko v. United States Information Agency
01991127
October 16, 2001
.
Barrett Glen Malko,
Complainant,
v.
Marc B. Nathanson,
Chairman,
Broadcasting Board of Governors,
International Broadcasting Bureau,
Agency.
Appeal No. 01991127
Agency No. OCR-96-08
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., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant
alleged that he was discriminated against on the bases of his sex and age
(DOB: 7/5/35) when:
(1) on August 31, 1995, in his performance evaluation for the period
of 7/1/94 to 6/30/95, he was rated at the �fully successful� level;
he was not selected for the position of Supervisory Computer Specialist
in August 1995;
on September 21, 1995, a facsimile meant for complainant was intercepted
and delivered to complainant's second-line supervisor;
on November 4, 1994, and March 27, 1995, he was denied training and
the permission to purchase books and read them during business hours
to update his skills;
he was ordered not to convene any more staff meetings;
he was harassed when he advised management on the use of illegal
software;
he was removed as ARCO from the VFDMS project<1>;
he was removed as project administrator on the VFDMS project;
he was ordered out of his office; and
he was accused of unprofessional conduct.
The record reveals that during the relevant time, complainant was
employed as a Computer Specialist in the agency's Automated Information
Systems Branch of the Office of Worldnet Television and Film Service.
The facts revealed by the record demonstrate that complainant and his
first-line supervisor (RMO) had a strained relationship and complainant,
an employee of the agency for more than 10 years, initiated the EEO
process following his non-promotion to supervisory computer specialist.
Believing he was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on December
18, 1995. 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.
When complainant failed to respond within the time period specified in
29 C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant established a prima
facie case of age and sex discrimination, but failed to rebut the
reasons articulated by the agency. The agency further concluded that the
alleged behavior did not rise to the level of harassment. On appeal,
complainant contends that the agency was incorrect in its conclusions.
The agency requests that we affirm its FAD.
ANALYSIS
Sex and Age Discrimination
To prevail in a disparate treatment claim, complainant must satisfy the
three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially
establish a prima facie case by demonstrating that he or 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). Proof of a prima facie case will vary depending
on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804
n. 14. The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is pretextual. 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); Pavelka v. Department of the
Navy, EEOC Request No. 05950351 (December 14, 1995).
As to (1), complainant did not receive a rating of �outstanding,� as
he would have preferred, because he received a �minimally successful�
rating for one of his rating requirements. This requirement dealt
with teamwork. Both the RMO and complainant's second-line supervisor
(RMO2) stated that complainant did not work well in the team framework,
giving rise to the rating complainant received. Complainant contends that
this teamwork performance requirement was changed without his knowledge
or input between review periods. The record evidence shows, however,
that complainant and all employees were aware of this new requirement.
Regarding (2), non-selection, the agency asserts that complainant was not
the most qualified for the position. Complainant contends this is untrue,
but does not present evidence to demonstrate he was plainly superior to
the selectee. With respect to (3), the intercepted facsimile, the agency
contends this was merely a mistake, and not an intentional act to make
complainant look unprofessional as complainant avers. Complainant offers
speculation without evidence that the act was, in fact, intentional.
Regarding (4), that of the denial of training and permission to purchase
books and review them during business hours, the agency asserts that
complainant's time was better spent on the special projects to which
he was tasked out. Complainant argues that this is untrue, but does
not support his contention with proof. Further, complainant offers no
similarly situated employees not of his protected class who were treated
more favorably.
With respect to (5), the agency stated, generally, that the meetings
convened by complainant were counter productive. Complainant argues that
management only felt this way because employees voiced various gripes
at the meetings. In any event, there is no evidence that convening
staff meetings was part of complainant's job, and complainant offers no
evidence that he was ordered to stop doing so because of his age or sex.
As to (6), complainant argues that the foregoing actions constituted
harassment taken because he warned management about the use of illegal
software. The RMO and RMO2 both state that complainant was ordered
to purchase new software as soon as the problem of using unlicenced
software was brought to their attention. Complainant contends otherwise.
There is no direct proof as to whose version is correct. Assuming,
arguendo, that complainant was not ordered to purchase new software,
there remains no evidence that the agency's motivations for its actions
were based on a discriminatory animus.
The agency has proffered legitimate reason as to (7) and (8) as well.
Specifically, the RMO and RMO2 site complainant's poor performance
as the reason why he was removed from the ARCO project and removed as
project administrator<2> on the VFDMS project. Complainant does not offer
evidence to rebut these reasons. Instead, complainant speculates that he
was removed as punishment for some unspecified act. Lastly, regarding
(9) and (10), assuming, arguendo, both occurred as complainant alleges,
there is nonetheless no evidence that these actions were motivated by
discriminatory animus towards complainant's sex or age.
Where the agency proffers a legitimate, nondiscriminatory reason for
the alleged discriminatory events, complainant bears the burden of
establishing that the agency's stated reason is merely a pretext for
discrimination. Shapiro v. Social Security Administration, EEOC Request
No. 05960403 (December 6, 1996). In this case, the Commission finds that
complainant has failed to establish by a preponderance of the evidence
that the agency's articulated reasons were more likely than not a pretext
for discrimination.
Harassment
With respect to (5) through (9), complainant contends that each
act demonstrates a pattern of harassment based on his sex and age.
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
A single incident or group of isolated incidents will not be regarded
as discriminatory harassment unless the conduct is severe. Walker
v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the
harassment is sufficiently severe to trigger a violation of Title VII
must be determined by looking at all the circumstances, including the
frequency of the discriminatory conduct, its severity, whether it is
physically threatening or humiliating, or a mere offensive utterance, and
whether it unreasonably interferes with an employee's work performance.
Harris v. Forklift Systems, 510 U.S. 17 (1993). Complainant alleged
that he was subjected to a hostile work environment and harassment.
To establish a prima facie case of hostile environment harassment,
complainant must show the existence of four elements: (1) he is a member
of a statutorily protected class; (2) he was subjected to harassment in
the form of unwelcome verbal or physical conduct involving the protected
class; (3) the harassment complained of was based on the statutorily
protected class; and (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering
with the work environment and/or creating an intimidating, hostile, or
offensive work environment. Humphrey v. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. �1604.11.
There is no evidence that the acts complained of were motivated by a
discriminatory animus. Instead, the record reveals that complainant's
deteriorating relationships with the RMO and RMO2, and poor performance
on projects were the cause of the challenged actions. Moreover,
while the agency does not deny RMO2 accused complainant of being
unprofessional or offer a reason for the action, as alleged in (10),
this act nonetheless, even coupled with the above matters, does not rise
to the level of harassment. All the matters raised by complainant,
considered in conjunction with one another, fail to rise to the level
of harassment protected by Title VII. Instead, this appears to simply
be a case of poor communication and poor working relationships.
We find that under a theory of hostile work environment, complainant
fails to establish a prima facie case of harassment since there is no
evidence that management's action was based on complainant's membership
in a protected class. See Harris v. Forklift Systems, Inc., 510 U.S. 17;
EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris
v. Forklift Systems, Inc. at 3, 6. Therefore, after a careful review of
the record, including complainant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, we AFFIRM the FAD.
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
October 16, 2001
__________________
Date
1 The record does not reveal what these acronyms stand for.
2 We note that the FAD states complainant was never technically
removed as program administrator on page 8, third paragraph, while
saying the exact opposite in fourth paragraph. Based on the record,
we find complainant was removed.