Christopher Grasse, Complainant,v.F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionMar 30, 2000
01971861 (E.E.O.C. Mar. 30, 2000)

01971861

03-30-2000

Christopher Grasse, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.


Christopher Grasse v. Department of the Air Force

01971861

March 30, 2000

Christopher Grasse, )

Complainant, )

) Appeal No. 01971861

v. ) Agency No. AR000960673

) Hearing No. 380-96-8062X

F. Whitten Peters, )

Acting Secretary, )

Department of the Air Force, )

Agency. )

)

DECISION

Complainant timely initiated an appeal from the agency's final decision

(FAD) concerning his equal employment opportunity (EEO) complaint of

unlawful employment discrimination on the bases of 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> Complainant alleges

he was discriminated and retaliated against on the above-stated bases

when: (1) from May of 1994 through April of 1995 he was harassed in the

workplace; and (2) on April 24, 1995, he was removed from employment

during his probationary period. 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 FAD.

The record reveals that during the relevant time, complainant was employed

as a GS-05 Child Development Training and Curriculum Specialist Intern in

the Child Development Center (CDC) at the agency's Elmendorf Air Force

Base facility in Alaska. Under the terms of this Internship program,

Training and Curriculum Specialist Interns were hired for a two-year

period in the CDC, and at the end of that time qualified for permanent

positions with the agency. Complainant claims that he was harassed over

the course of his Internship by the CDC Manager (Manager), when he was:

(1) accused of time and attendance problems; (2) accused of abusing

several children and providing incorrect medication to a child under his

care; and (3) questioned about his interest as a male in the child care

field and his EEO activity. Complainant also claims he was terminated

by the Manager due to his sex and prior EEO activity. Believing he

was a victim of discrimination, complainant sought EEO counseling and,

subsequently, filed a formal complaint on April 18, 1995.

At the conclusion of the investigation, complainant received a copy of the

investigative report and requested a hearing before an EEOC Administrative

Judge (AJ). Following a hearing, the AJ issued a Recommended Decision

(RD) finding no discrimination. The AJ concluded that complainant

established a prima facie case of sex discrimination because he was the

only male CDC Intern and experienced a number of problems on the job,

including allegations of time and attendance problems and child abuse,

and being counseled about giving improper medication to a child, which

were not experienced by the similarly situated female Interns. The AJ

found that complainant established that as a whole, the conduct he was

subjected to was sufficiently severe and pervasive so as to create a

hostile working environment, and was primarily initiated by the Manager.

In addition, the AJ found that complainant established a prima facie case

of sex discrimination with regard to his termination in April of 1995,

as there were no similarly situated female Interns who were terminated.

Finally, the AJ found that complainant established prima facie cases

of reprisal regarding his treatment by the Manager and his termination,

as there was a sufficient nexus between complainant's protected activity

and the adverse agency actions.

The AJ then concluded that the agency articulated legitimate,

nondiscriminatory reasons for its actions, namely, that the Manager

initially counseled complainant due to problems over his time and

attendance and his criticism of the child care program at the facility.

Specifically, the Manager stated that she placed complainant in Absent

without Leave status because he took leave without securing the proper

supervisory approval, and also questioned his commitment to the training

program given his "negative attitude" due to his feeling that he was

not learning from the Internship. The Manager further stated that she

began steps to place complainant in a Performance Improvement Plan in

February of 1995 to require improvement in five specific areas of his

performance, but did not follow through due to complainant's termination.

In addition, the Manager documented three incidents of alleged child abuse

by complainant during his Internship period, and stated that although

two incidents could not be substantiated, one incident in which a child

was injured due to complainant's carelessness and inappropriate physical

restraint was substantiated by the facility's Family Advocacy Office with

corroborative testimony. The Manager further stated that complainant

was responsible for giving a child an improper dose of medication,<2>

and she testified that once she was notified about the substantiated

incident of complainant's child abuse/neglect, she had no choice but to

remove complainant from his position and subsequently terminated him.

The AJ further found that complainant failed to establish that more

likely than not, the agency's articulated reasons were a pretext to mask

unlawful discrimination/retaliation. In reaching this conclusion, the AJ

found that there was insufficient witness testimony and other evidence

to conclude that the Manager believed complainant was not suited to

work in the CDC due to his gender or in reprisal for prior EEO activity,

but rather that other job-related issues, such as his criticism of the

Internship program, his lack of training, deficiencies in his time and

attendance and a fully investigated and substantiated incident of child

abuse made him unsuited to work in the CDC. The agency's FAD implemented

the AJ's RD. On appeal, complainant restates arguments previously made

at the hearing. The agency responds by restating the position it took

in its FAD, and requests that we affirm its final decision.

Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at

29 C.F.R. �1614.405(a)), all post-hearing factual findings by an

Administrative Judge will be upheld if supported by substantial evidence

in the record. Substantial evidence is defined as "such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion."

Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,

477 (1951). A finding that discriminatory intent did not exist is a

factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293

(1982).

After a careful review of the record, the Commission finds that the

AJ's RD summarized the relevant facts and referenced the appropriate

regulations, policies, and laws. The Commission finds that the

evidence of record establishes that despite complainant's allegations

of discrimination and retaliation, the agency articulated legitimate,

nondiscriminatory reasons for its treatment of complainant during his

Internship and his subsequent termination in April of 1995. In addition,

we agree with the AJ's finding that complainant failed to present evidence

that it was more likely than not that any of the agency's actions were in

retaliation for his prior EEO activity or were motivated by discriminatory

animus toward his sex. We thus discern no basis to disturb the AJ's RD.

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 FAD.

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 30, 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 We note that complainant does not contest the agency's allegation that

he gave an improper dose of medication to a child under his care.