Charles E. Harris, Jr., Complainant,v.Bruce Babbitt, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionMar 31, 2000
01974225 (E.E.O.C. Mar. 31, 2000)

01974225

03-31-2000

Charles E. Harris, Jr., Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.


Charles E. Harris, Jr. v. Department of the Interior

01974225

March 31, 2000

Charles E. Harris, Jr., )

Complainant, )

) Appeal No. 01974225

v. ) Agency No. FNP-94-003

)

Bruce Babbitt, )

Secretary, )

Department of the Interior, )

Agency. )

)

DECISION

INTRODUCTION

Complainant timely initiated an appeal of a final agency decision

concerning his complaint of unlawful employment discrimination on the

bases of race (African-American), color (brown), sex (male), and 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> The appeal is

accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified

at 29 C.F.R. � 1614.405). For the following reasons, the Commission

AFFIRMS the agency's final decision.

ISSUE PRESENTED

The issue presented herein is whether complainant has established that he

was discriminated against on the above-referenced bases when the agency:

(1) opened his personal mail which resulted in $300.00 being taken from

it; (2) opened his "special attention" mail thereby exposing his social

security number; (3) delayed his request for personnel action regarding

his promotion and additional duties; and (4) did not allow him to travel

to field offices to ensure that they were in compliance with certain

directives, policies, and guidelines.

BACKGROUND

Complainant, employed by the agency as a Supply Systems Analyst when

the alleged discriminatory events occurred, filed a formal complaint

on October 18, 1993, in which he raised what has been identified as the

issue presented. The agency accepted the complaint for processing and,

at the conclusion of its investigation, issued a final decision finding

no discrimination. This appeal followed.

Evidence in the investigative file reveals that complainant received

a personal letter at the agency's facility. The letter was opened by

mailroom personnel before it reached complainant's desk. According to

complainant, $300, which he never received was enclosed with the letter.

Ten days later, complainant received another letter marked "special

delivery." Again, the letter was opened, this time exposing complainant's

social security number, before it was received by the complainant.

The agency contended that complainant's letters were opened pursuant to

its policy that all mail entering the mailroom be opened. The purpose

of the policy was to eliminate junk mail and to ensure that all mail was

distributed properly. The agency noted that whether or not this policy

applied to personal mail was never discussed because receiving personal

mail in the workplace is not appropriate. Complainant claimed that both

letters were opened on the bases of race, color, sex, and reprisal.

Complainant also claimed that a Request for Personnel Action (Request)

submitted by his supervisor to promote him from a GS-12 to a GS-13 was

delayed because of his race and reprisal.<2> According to materials in

the file, complainant's supervisor submitted the Request in September

1992. At the time of the formal complaint, filed on October 18, 1993, no

action had been taken on the Request. Action on the Request was finally

taken on March 10, 1994 when the Personnel Office officially notified

complainant's supervisor that complainant's position, despite additional

duties detailed in the Request, did not warrant a grade increase.

According to officials in the Personnel Office, a Position Clarification

Specialist (Specialist) position had been vacant for several months,

causing a backlog of Requests for Personnel Action. A new Specialist,

hired in October 1993, decided to process the simple requests first,

to move the backlog, and then process the more detailed requests,

including complainant's request. The agency stated that consequently,

complainant's Request took longer than the normal processing time.

Finally, complainant contends that, because of his race, he was denied

the opportunity to travel to field offices to ensure that they were

in compliance with the agency's directives, policies, and guidelines

regarding the Property Management Program. To support his claim,

complainant cited three white employees, one of whom (the Employee)

reported to the same supervisor as he, who had been allowed to travel.

In response, agency officials contended that the Employee was allowed to

travel because he was involved in helping various regions in space design

and layout. The agency also contended that the regions, not the agency,

paid for the Employee's travel. Complainant admitted that he had no

information regarding who paid for the Employee's travel. Finally,

the agency contended that the Employee dealt with Space Management,

which is quite different from Property Management, the area in which

complainant focused.

ANALYSIS AND FINDINGS

In the absence of direct evidence of discrimination, the allocation of

burdens and order of presentation of proof in a Title VII case alleging

discrimination is a three-step process. McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-803 (1973). See, Hochstadt v. Worcestor 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) First, complainant must establish a prima facie

case of discrimination by presenting facts that, if unexplained,

reasonably give rise to an inference of discrimination; i.e., that a

prohibited consideration was a factor in the adverse employment action.

McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a

legitimate, nondiscriminatory reason(s) for its actions. Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency

is successful, then the complainant must prove, by a preponderance of

the evidence, that the legitimate reason(s) proffered by the agency was

a pretext for discrimination. Id. at 25.

In order to establish a prima facie case of discrimination for a claim

of reprisal, complainant must show the existence of four elements:

(1) that he engaged in protected activity; (2) that the alleged

discriminating official was aware of the protected activity; (3) that

he was disadvantaged by an action of the agency contemporaneous with

or subsequent to such participation; and (4) that there was a causal

connection between the protected activity and the adverse employment

action. See, Hochstadt, Id., see also Mitchell v. Baldridge, 759 F.2d

80, 86 (D.C. Cir. 1985); Burris v. United Telephone Co. of Kansas, Inc.,

683 F.2d 339, 343 (10th Cir. 1982), cert. denied, 459 U.S. 1071 (1982).

Although the initial inquiry of discrimination in a discrimination case

usually focuses on whether the complainant has established a prima facie

case, following this order of analysis is unnecessary when the agency

has articulated a legitimate, nondiscriminatory reason for its actions.

See Washington v. Department of the Navy, EEOC Petition No. 03900056 (May

31, 1990). In such cases, the inquiry shifts from whether the complainant

has established a prima facie case to whether he has demonstrated by a

preponderance of the evidence that the agency's reasons for its actions

merely were a pretext for discrimination. Id.; see also United States

Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).

In this case, the Commission finds that the agency articulated legitimate,

nondiscriminatory reasons for its actions. Specifically, regarding the

complainant's opened mail, the agency stated that all mail that entered

the agency's mailroom was opened to eliminate junk mail and ensure

appropriate delivery. Regarding the delay in considering whether or nor

complainant's position should be given a grade increase, the agency stated

that the person charged with handling the request processed it later

rather than sooner because it was one of the more involved requests.

Finally, the agency stated that complainant was not allowed to travel

because there were limited funds in the agency's travel budget and

because the agency's Property Management guidelines were not complete.

Because the agency has proffered legitimate, nondiscriminatory reasons

for the alleged discriminatory events, complainant now 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). Complainant can do this

by showing that the agency was motivated by a discriminatory reason.

Id. (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)).

In this case, complainant has failed to meet that burden.

Regarding the agency's mail opening policy, the complainant submitted no

evidence which would indicate that the policy at issue here was applied

in a discriminatory manner. A mailroom employee stated that she opened

all mail that entered the mailroom.

As for the delay in processing the Request, evidence in the file suggests

that the delay was not discriminatory. In addition to submitting

the Request on behalf of complainant, complainant's supervisor also

submitted such requests on behalf of one other employee (White, no prior

EEO activity) approximately six months before submitting complainant's

Request. At the time of the formal complaint, a decision had not been

made on either. This lends credence to the agency's contention that,

because of the huge backlog in the Personnel Office, the official

charged with handling such requests put the most complex ones aside to

be processed later.

Regarding the agency's denials of complainant's travel requests,

complainant has not shown how employees outside of his protected groups

were treated more favorable than he. Of the three employees he cited

that were allowed to travel, only one worked under his supervisor. That

employee worked in Space Management, unlike complainant who worked in

Property Management.

Based on the foregoing reasons, the Commission finds that complainant

failed to establish, in all three instances, that the agency's stated

reasons constituted an effort to mask discriminatory animus.

CONCLUSION

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

contentions on appeal, the agency's response thereto, and arguments and

evidence not specifically addressed in this decision, we hereby AFFIRM

the final agency decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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 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:

March 31, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

1 On 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.

2 Complainant believed that officials in the personnel office were

responsible for this alleged discriminatory event.