01982284
04-05-2001
Clyde F. Crossguns, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, (Bureau of Indian Affairs), Agency.
Clyde F. Crossguns v. Department of the Interior (Bureau of Indian
Affairs)
01982284
April 5, 2001
.
Clyde F. Crossguns,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
(Bureau of Indian Affairs),
Agency.
Appeal No. 01982284
Agency No. BIA-97-004
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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleged that he was discriminated
against on the bases of race (American Indian), national origin
(Blackfeet tribe), and reprisal (prior EEO activity) when:
1. On July 18, 1996, his supervisor (S-1) threatened to terminate him
from his position as a temporary intermittent/seasonal
employee for reporting unsafe working conditions to the
Safety Officer; and
2. On August 1, 1996, complainant was informed by memorandum that he
would be terminated effective August 3, 1996.
The record reveals that during the relevant time, complainant was
employed as a Foreman II at the agency's Highway Project #49, Blackfeet
Road Development, Blackfeet Agency, Billings, Montana. Believing he
was a victim of discrimination, complainant sought EEO counseling and
subsequently filed a formal complaint on September 4, 1996. 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. Complainant requested that
the agency issue a final decision.
In its FAD, the agency concluded that complainant had failed to establish
a prima facie case of discrimination on any basis, but that even if he
had, the agency was still able to articulate legitimate, nondiscriminatory
reasons for terminating him. These were a lack of workload demand for
the Foreman II position as such, and insubordinate behavior and poor
job performance on the part of the complainant.
On appeal, complainant again contends that he was discriminated
against when S-1 threatened and then terminated him for reporting an
unsafe working condition to the agency Safety Officer. As evidence,
he mentions a previously submitted tape recording of a conversation
between himself and S-1 in which the latter disparages the work of the
Safety Officer. Complainant contends that this supports his claim
that S-1 was not concerned with the safety of his employees and did not
welcome safety officers to the job site. Complainant also asserts that
S-1's statements about complainant's poor performance and insubordination
were fabrications.
In response, the agency requests that we affirm its FAD and notes the
following: First, complainant could not establish a prima facie case of
reprisal since he had not engaged in any prior protected EEO activity.
Second, even though complainant could not establish a prima facie case of
race or national origin discrimination either, the agency still provided
legitimate, nondiscriminatory reasons for his termination, namely, his
insubordination, lack of performance on the job, and lack of workload
demand, reasons which complainant was unable to show were pretextual.
In this regard, the agency pointed to statements by witnesses that
complainant performed jobs without management authorization, and lacked
necessary work experience as a Foreman II.
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 agrees with the agency that complainant failed
to establish a prima facie case of reprisal discrimination because he
had not engaged in any prior protected EEO activity. We also agree that
complainant failed to establish a prima facie case of race and national
origin discrimination as well. In reaching this conclusion, we note
that complainant presented no evidence that similarly situated persons
outside his protected classes committed similar infractions, yet were not
terminated from their temporary positions, nor any other evidence from
which an inference of discrimination could be drawn. The Commission
further finds that complainant failed to present evidence that more
likely than not, the agency's articulated reasons for complainant's
termination were a pretext for discrimination.
Therefore, after a careful review of the record, including complainant's
other 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 (M0900)
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
April 5, 2001
Date