01A23991
12-10-2003
Cudge L. Hiatt, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Cudge L. Hiatt v. Department of the Army
01A23991
December 10, 2003
.
Cudge L. Hiatt,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A23991
Agency Nos. ACFRF0980210210;
ACFRF0980310350; ACFRF098811350
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. For the following reasons, the Commission affirms
the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Heavy Mobile Equipment Mechanic, WG-5803-08, at the Maintenance
Branch, Equipment Concentration Site (ECS) 17, 90TH Regional Support
Command (RSC), Fort Polk, Louisiana facility. Complainant sought EEO
counseling and subsequently filed formal complaints, dated February 4,
24, and July 19, 1998, alleging that he was discriminated against on the
bases of national origin (from California), age (43), and in reprisal
for prior EEO activity when:
(1) on or about February, 1998, he became aware that Merit Promotion
Announcement 23-97 was going to be rescinded (Agency No. 0980210210);
on or about February, 1998, management failed to take corrective action
when a co-worker, assaulted complainant and then engaged in a pattern
of harassment for approximately 15 days after the assault by looking
menacing[ly] at complainant (Agency No. 0980310350); and
on or about July 19, 1998, complainant was not promoted to an ECS 17
Inspector Position, WG-5803-10 (Agency No. 0980811350).
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 a hearing before an Administrative Judge, subsequently withdrew
his request, and requested an agency final decision. The agency found
no discrimination. Neither complainant nor the agency makes no new
contentions on appeal.
In its FAD, the agency concluded that complainant failed to establish all
the required elements for establishing a prima facie case of reprisal,
national origin, or age for any of his claims. The agency further
found that assuming complainant had established a prima facie case of
age discrimination and retaliation, complainant did not meet his burden
of establishing that the agency's articulated reasons were not credible
or were a pretext to mask prohibited discrimination. Specifically,
regarding claim (1), the agency found that these positions were advertised
under Merit Promotion Announcement 23-97, and complainant and five other
individuals applied for the advertised positions. The agency also found
that the names were submitted to the Supervisor, Maintenance Management
Specialist (S1) for consideration by means as referral list; however,
headquarters did not authorize the funds, and S1 rescinded the position.
Regarding claim (2), the agency found that management counseled all
parties to the alleged assault and then counseled the alleged co-worker
responsible for the assault in writing. The agency also found that
when complainant informed management of the alleged harassment by the
co-worker, management moved the co-worker to another area. Regarding
claim (3), the agency found that management screened its database for
re-promotion eligible candidates , the result of which showed the selectee
as re-promotion eligible. The agency also found that re-promotion
eligible candidates are referred for consideration prior to referring
any other candidates. The agency further found that the selectee was
the only re-promotion eligible candidate for the position at issue.
ANALYSIS AND FINDINGS
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)
(requiring a showing that age was a determinative factor, in the sense
that "but for" age, complainant would not have been subject to the adverse
action at issue). A complainant must first 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
reason was a factor in the adverse employment action. McDonnell Douglas
Corp. v. Green, 411 U.S. at 802;Furnco Construction Corp v. Waters,
438 U.S. 567 (1978). Next, the agency must articulate a legitimate,
nondiscriminatory reason for its action (s). Texas Department of
Community Affairs v. Burdine, 450 U.S. 248 (1981). After the agency has
offered the reason for its action, the burden returns to the complainant
to demonstrate, by a preponderance of the evidence, that the agency's
reason was pretextual, that is, it was not the true reason or the action
was influenced by legally impermissible criteria. Burdine, 450 U.S. at
253; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
the complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. U.S. Postal Service
Bd. Of Governors v. Aikens, 460 U.S. 711, 713-714 (1983).
Assuming arguendo, that complainant established a prima facie case of
discrimination based on his age or national origin, the Commission finds
that the agency has articulated a legitimate, nondiscriminatory reason
for its actions. The Commission also finds that complainant has failed
to show pretext. In reaching this conclusion, we note that complainant
did not rebut any of the agency's reasons for its actions. The record
did not support any evidence of unlawful discrimination.
We turn now to complainant's claim of reprisal discrimination.
Specifically, in a reprisal claim, according with the burdens set forth
in McDonnell Douglas Corp. v. Green, 411 U.S. 792,802 (1973) and Coffman
v. Department of Veteran Affairs, EEOC Request No. 05960473 (November 20,
1997), complainant may establish a prima facie case of reprisal by showing
that: (1) he engaged in a protected activity; (2) the agency was aware
of her protected activity; (3) subsequently, he was subjected to adverse
treatment by the agency; and (4) a nexus exists between the protected
activity and the adverse treatment. Whitmire v. Department of the Air
Force, EEOC Appeal No. 01A00340 (September 26, 2000). The nexus may
be shown by evidence that the adverse treatment followed the protected
activity within such a period of time and in such manner that a reprisal
motive is inferred. See Devereux v. United States Postal Service,
EEOC Request No. 05960869 (April 24, 1997). We find that complainant
failed to establish a prima facie case of reprisal discrimination.
Specifically, we find that complainant did not establish the necessary
causal nexus between the alleged discriminatory actions and his prior
protected activity. Although evidence shows that the alleged adverse
actions were arguably sufficiently proximate in time to complainant's
protected activity in January 1998, we find that there is no evidence
as to the manner that can support an inference of retaliation.
Therefore, after a careful review of the record including 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
December 10, 2003
__________________
Date