01A15161
11-05-2002
Benjamin Tingle, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Benjamin Tingle v. Department of the Air Force
01A15161
November 5, 2002
.
Benjamin Tingle,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A15161
Agency Nos. AR000010366 and AR000010367
DECISION
Complainant timely initiated an appeal from two (2) final agency decisions
(FAD) concerning his complaints 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 Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq.<1> The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission AFFIRMS the agency's FADs.
The record reveals that during the relevant time, complainant was
employed as a Supply Technician at the agency's Tinker Air Force Base,
Oklahoma facility (�facility�). Complainant sought EEO counseling and
subsequently filed a formal complaint on October 27, 2000, (Case Number
AR000010366), alleging that he was discriminated against on the basis
of race (Black) and disability (Post Traumatic Stress Disorder (�PTSD�)
when it proposed on June 20, 2000 to suspend him without pay for five
(5) days. Complainant also alleged he was discriminated against in
reprisal for prior EEO activity when the agency suspended him without
pay from August 21, 2000, through August 25, 2000.
Complainant also filed another formal complaint on January 22, 2001 (Case
Number AR000010367), alleging that he was retaliated against due to prior
EEO activity when his first-level supervisor (S1) did not schedule him
for training scheduled for December 5-12, 2000.
Regarding complainant's first complaint, the record indicates that
S1 notified him on June 20, 2000 that he would be suspended from duty
without pay for five (5) days for failure to comply with a direct order.
The record further indicates that on June 7, 2000, complainant walked out
of a meeting with S1 and disobeyed S1's order to some back to his office.
S1 had called complainant into his office to discuss an argument involving
complainant and a co-worker that occurred at work on June 6, 2000.<2>
Following a facility investigation, complainant's second-level supervisor
(S2) informed complainant that after considering all the evidence,
the altercations involving complainant did occur, and thus complainant
was suspended without pay from August 21, 2000 through August 25, 2000.
Regarding complainant's first complaint, the record indicates that the
failure to schedule complainant for training was an oversight
At the conclusion of the investigations in both complaints, 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 first FAD issued on August 3, 2001, the agency initially found
that complainant established a prima facie case of race discrimination.
In so finding, the FAD noted that complainant is a member of a protected
group, got into an argument with a co-worker (White male) and his
supervisor proposed a harsher punishment than the co-worker received.
The FAD found that the agency articulated legitimate, nondiscriminatory
reasons for its actions, namely, that complainant received more discipline
than did the White co-worker as he had two incidents at issue (i.e., both
the altercation with the co-worker on June 6, 2000, and his failure to
respond to the direct order of S1 on June 7, 2000). The FAD found that
S1 provided evidence that management's response to complainant's actions
on June 6-7, 2000, was well-researched and based upon agency guidelines.
The FAD then found that complainant failed to demonstrate that the
agency's articulated reason were a pretext for race discrimination.
Addressing complainant's claim of disability discrimination, the FAD found
that there was insufficient evidence that complainant is an individual
with a disability to qualify for coverage under the Rehabilitation Act.
In so finding, the FAD noted that while complainant has a veterans
preference, there was no medical diagnosis or other recognition of PTSD
in the record. The FAD noted that there is insufficient evidence of
the severity of complainant's PTSD or that it substantially impairs
any major life activities. Further, the FAD found that complainant
established a prima facie case of reprisal, as S1 and S2 became aware of
complainant's prior EEO activity and suspended him shortly thereafter.
The FAD found that the agency articulated legitimate, nondiscriminatory
reasons for its actions, namely, that complainant's five-day suspension
was determined after consideration of agency written guidelines and
analysis of complainant's rebuttal. The FAD then found that complainant
failed to establish that the agency's articulated reasons were not a
pretext for retaliation.
In its second FAD, also issued on August 3, 2001, the agency found that
complainant established a prima facie case of retaliation, as S2 knew
that complainant engaged in prior EEO activity and complainant was
denied training shortly after complainant's protected activity such
that a retaliatory motive can be inferred. The FAD further found that
complainant did not establish a prima facie case of reprisal through a
hostile work environment. The FAD then found that the agency articulated
legitimate, nondiscriminatory reasons for its actions, namely, that
the failure to schedule complainant for training was an oversight.
In addition, the FAD found that complainant failed to establish that the
agency's articulated reasons for omitting complainant from the training
at issue were a pretext for discrimination.
On appeal, complainant again contends that the agency discriminated and
retaliated against him when it gave him the five (5) day suspension at
issue and failed to schedule him for training. The agency requests that
we affirm its FAD.
Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973), and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to reprisal cases), the
Commission initially considers the agency's FAD on complainant's first
claim and agrees with the agency that while complainant established a
prima facie case of race discrimination, complainant failed to demonstrate
that the agency's articulated reasons for issuing him the suspension
were pretextual in nature. In reaching this conclusion, we note that
the agency stated that complainant received a five (5) day suspension
while the co-worker at issue received a lesser punishment was due to
the altercation on June 6, 2000, and also due to complainant's failure
to respond to the direct order of S1 on June 7, 2000.
Addressing complainant's claim of disability discrimination, the
Commission finds that assuming, arguendo, that complainant is an
individual with a disability under the Rehabilitation Act, we find
that there is no evidence in the record that the agency issued the
suspension to complainant due to any impairment he may have had.<3>
Further, there is no evidence in the record that the agency violated
the Rehabilitation Act in any way by suspending complainant for five
(5) days. In addition, the Commission agrees with the FAD's finding
that while complainant established a prima facie case of retaliation,
he failed to demonstrate that the agency's articulated reasons for its
actions were more likely than not a pretext for retaliation. While there
is evidence in the record that S1 and S2 were aware of complainant's prior
EEO activity when the proposed suspension was issued, we find that the
evidence establishes that complainant was issued the suspension due to
his altercation with the co-worker at issue and his failure to respond
to the direct order of S1 as detailed above.
Considering the agency's FAD which addressed complainant's second formal
complaint, the Commission initially agrees that complainant established
a prima facie case of retaliation. In addition, we agree with the FAD's
finding that complainant failed to proffer evidence which demonstrates
that the agency's articulated reasons for omitting complainant from the
training at issue were pretextual in nature. We note that complainant
alleged that S2 admitted to retaliating against complainant by denying
him training. Investigative File (IF), at pages 3, 150. However, the
evidence establishes that the agency's failure to schedule complainant
for the training at issue was a mere oversight. Initially, we note that
the record establishes that after S2 realized he had omitted complainant
from the training, he notified S1 that he forgot to include complainant.
IF, at page 120. The record further indicates that on December 6, 2000,
S2 scheduled complainant for the training at issue. IF, at page 155.
Regarding complainant's allegation that S2 conceded retaliating against
complainant, we note that S2 stated that complainant's prior EEO activity
did not influence his actions against complainant. Further, we note
that one of complainant's co-workers stated that he had never witnessed
S2 making inappropriate remarks against complainant or anything that
would indicate that he would discriminate against complainant. IF, at
page 167. While the record does establish that complainant and S2 had an
antagonistic relationship, we find that there is insufficient evidence
to demonstrate that the agency's articulated reasons for temporarily
omitting complainant from a training session were more likely than not
pretexts for retaliation.
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 agency's FADs.
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
November 5, 2002
__________________
Date
1 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2 Complainant is a military veteran who received counseling for PTSD,
and anger management is an integral part of his PTSD therapy.
3 Further, we note that while the record contains evidence that
complainant has a veterans preference due to his PTSD, but there is
no evidence regarding the severity of the PTSD or evidence that his
impairment substantially limits any of his major life activities.