01991214
02-13-2001
Dale D. Brinkman, Complainant, v. Lawrence J. Delaney, Acting Secretary, Department of the Air Force, Agency.
Dale D. Brinkman v. Department of the Air Force
01991214
02-13-01
.
Dale D. Brinkman,
Complainant,
v.
Lawrence J. Delaney,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 01991214
Agency Nos. RXOF 96-004; 96-010; 95-027; 95-028
Hearing Nos. 110-98-8059X -8060X 110-97-8317X -8353X
DECISION
On October 28, 1998, Dale D. Brinkman (hereinafter referred to as
complainant) filed a timely appeal from the September 28, 1998, final
decision of the Department of the Air Force (hereinafter referred to as
the agency) concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. The appeal is timely filed (see 29 C.F.R. �
1614.402(a))<1> and is accepted in accordance with 29 C.F.R. � 1614.405.
For the reasons that follow, the agency's decision is AFFIRMED.
The issue presented in this appeal is whether the complainant has proven,
by a preponderance of the evidence, that the agency harassed him and
discriminated against him on the basis of sex and in reprisal for prior
EEO activity with regard to events in 1995.
Complainant filed four formal complaints: RXOF 95-027 on June 27,
1995 (Complaint 1); RXOF 95-028 on August 8, 1995 (Complaint 2); RXOF
96-004 on December 4, 1995 (Complaint 3); and RXOF 96-010 on January 26,
1996 (Complaint 4).<2> Following investigations, complainant requested
hearings before an EEOC Administrative Judge (AJ), and the complaints were
consolidated for hearing. The AJ held a hearing in March and June 1998,
and he issued his Decision on July 14, 1998, finding no discrimination on
all claims. The agency adopted the AJ's RD and issued its final decision,
from which complainant appeals.
At the time of the events herein, complainant, a retired Master Sergeant,
worked as a Public Affairs Specialist, GS-12, at Robins AFB, Georgia.
He had held the Deputy position from April 1993, until a new supervisor
(S1) abolished the position in April 1994.<3> Several months later,
S1 assigned another employee (S2) as her assistant, thus becoming
complainant's supervisor. In August 1994, complainant received a final
evaluation from the previous supervisor and from S1, both of which rated
him poorly. He filed an internal grievance on both ratings, and both
evaluations were recalled; in January 1995, S1 gave him a new rating of
excellent, awarding him 79 out of 81 possible points.
In his complaints, complainant claimed that S1 and S2 discriminated
against him with regard to the following incidents (all of which occurred
in 1995). In Complaint 1, complainant claimed discrimination on the basis
of sex when, on February 14, he received a memorandum to relinquish his
computer so two females could be given new computers, while he would
receive an older model; and, on March 15, he was told to coordinate
certain of his work assignments for special events with a less senior
employee. In Complaint 2, he claimed discrimination on the basis of sex
and in reprisal when, on April 12, he was told to skip the last day of a
computer class; on April 17, he was admonished in front of the staff; on
April 18, he was counseled about his failure to use the sign-in/sign-out
board; on April 19, he was told not to bring his spouse to office events;
and on April 20, he was asked about a pending suspense. In Complaint 3,
he claimed discrimination on the basis of sex and in reprisal when, on
July 20 and 24, the office readings contained sexist cartoons; and on
August 11, he was issued a letter of counseling for his failure to use
the sign-in/sign-out board. In Complaint 4, he claimed discrimination
on the basis of sex and in reprisal when, on November 22, S1 screamed
at him; on November 27, he was humiliated in front of the staff; and on
December 1, he was intimidated about a tardy job assignment.
The AJ found that the agency articulated legitimate, nondiscriminatory
reasons for its actions and that complainant failed to show that the
agency's reasons were pretextual. In general, the AJ found that many
of the actions identified by complainant, e.g., being told to skip a
computer class, being admonished, told to use the sign-in/sign-out board,
directed not to bring his wife to luncheons, and being asked about a
pending suspense, did not amount to adverse actions and that S1 exercised
her admittedly autocratic managerial style on the entire office staff,
taking action against males and females and those who had not filed EEO
complaints. With regard to some of the specific events complained of,
in order of event, the AJ found that complainant rarely used his computer
and that the two female employees had greater need and that, in the end,
complainant kept his computer; complainant had requested assistance and
was directed to work with the junior employee; complainant was not told
to skip the class but to complete an assignment within a certain time
frame; complainant was orally admonished for failing to follow S1's
directions; and all employees were told not to bring their spouses to
office luncheons.
With regard to the letter of counseling, the AJ found that it was never
placed in complainant's official file, and complainant never denied or
disproved that he had failed to use the sign-in/sign-out board or showed
that others had failed to use it and were not disciplined. As to his
claims of harassment, the AJ found that, while S1 may have raised her
voice, or even screamed at complainant, testimony showed that she screamed
at others across gender lines and those who had not filed EEO complaints,
that she orally counseled and wrote notes to others, and that there was
no showing of more or significant harassment directed at complainant.
The AJ held that S1's actions, such as her requests for information on
assignments, were within her province as office director and complainant's
supervisor and that complainant did not show that he complied with S1's
directions or that her requests and comments were unreasonable.
On appeal, complainant contests the AJ's conclusions. He noted that
the AJ did not mention the cartoons in the office readings, argued that
adverse actions may include reductions in duties, lower performance
evaluations, and negative reports placed in an employee's file,
and contended that the AJ ignored the testimony of the witnesses who
supported his claims. Complainant argued that he established a prima
facie case and that the agency's reasons were pretextual, in that, S1's
actions, i.e., the cartoons and her language, constituted �male bashing.�
(Appeal, p. 20).
Pursuant to 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) (citation omitted).
A finding regarding whether or not discriminatory intent existed is a
factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293
(1982). After an independent review of the record and hearing testimony,
including consideration of all statements submitted on appeal, it is the
decision of the Commission that the AJ accurately stated the facts and
correctly applied the pertinent principles of law and that his decision
is supported by substantial evidence in the record.
Complainant claimed discrimination based on sex and reprisal.
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976). 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 consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). Next, the agency must articulate an explanation for
its actions, and, if successful, the burden returns to the complainant
to demonstrate by a preponderance of the evidence that the agency's
actions were based on prohibited considerations of discrimination, that
is, its articulated reason for its action was not its true reason but
a sham or pretext for discrimination. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981); St. Mary's Honor Center
v. Hicks, 509 U.S. 502 (1993). Where, as here, the agency articulates
a legitimate, nondiscriminatory reason for its actions, the factual
inquiry can proceed directly to the third step to consider whether
complainant has demonstrated that the agency's action was pretextual.
United States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-14 (1983).
In the matter before us, we agree with the AJ and find that the agency
articulated legitimate, nondiscriminatory reasons for its actions.
The agency's actions were in accord with proper exercise of its
managerial obligations and based on proper considerations of service and
personnel needs. Complainant has not demonstrated that these reasons
were not the true reasons or that they were based on prohibited factors of
discrimination or discriminatory animus. See Reeves v. Sanderson Plumbing
Products, Inc., � U.S. �, 120 S.Ct. 2097 (2000). We find therefore that
the agency did not discriminate against complainant based on sex.
To establish a prima facie case of reprisal discrimination, appellant
must show that (1) he engaged in prior protected activity; (2) the
acting agency official was aware of the protected activity; (3) he
was subsequently disadvantaged by an adverse action; and, (4) there
is a causal link between the protected activity and adverse action.
Hochstadt v. Worcester Foundation for Experimental Biology, Inc., supra;
Manoharan v. Columbia University College of Physicians and Surgeons,
842 F.2d 590, 593 (2d Cir. 1988). The causal connection may be shown by
evidence that the adverse action followed the protected activity within
such a period of time and in such a manner that a reprisal motive is
inferred. Grant v. Bethlehem Steel Corp., 622 F.2d 43 (2nd Cir. 1980).
Even assuming that complainant established a prima facie case of reprisal
discrimination, as stated above, the agency articulated legitimate,
nondiscriminatory reasons for its actions in response to which complainant
failed to demonstrate pretext. We agree with the AJ and find that the
agency did not discriminate against complainant in reprisal.
Complainant also complained that the agency harassed him with regard
to the events at issue herein. The harassment of an employee based on
his/her race, color, sex, national origin, age, disability, or religion is
unlawful, if it is sufficiently severe or pervasive. McKinney v. Dole,
765 F.2d 1129, 1138-1139 (D.C. Cir. 1985). To prevail on his harassment
claims, complainant must show that he was subjected to harassment because
of discriminatory factors. In assessing allegations of harassment,
the Commission examines factors such as the frequency of the alleged
discriminatory conduct, its severity, whether it is physically threatening
or humiliating, and if it unreasonably interferes with an employee's
work performance. Harris v. Forklift Systems, Inc., 510 U.S 17 (1993).
Usually, unless the conduct is severe, a single incident or group of
isolated incidents will not be regarded as discriminatory harassment.
Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982).
See generally Enforcement Guidance: Vicarious Employer Liability for
Unlawful Harassment by Supervisors (June 18, 1999). We agree with the
AJ that the actions cited by complainant did not constitute unlawful
harassment, in that, even taken together and assumed to be true, the
incidents did not create a hostile work environment such that it had
a direct effect on his work performance or altered the conditions of
the workplace. Enforcement Guidance, p. 2, citing, Oncale v. Sundowner
Offshore Services, Inc., 523 U.S. 75 (1998).
CONCLUSION
Accordingly, for the foregoing reasons, the agency's decision was proper
and is AFFIRMED.
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
___02-13-01_______________
Date
1On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2The agency initially dismissed most of the issues in these complaints.
On appeal, the Commission remanded the dismissed issues. EEOC Appeal
No. 01965499 (August 26, 1997); EEOC Appeal No. 01962856 (February
11, 1997); EEOC Appeal No. 01965456 (May 8, 1997). In addition, the
Commission remanded complainant's claim of constructive reassignment.
EEOC Appeal No. 01974693 (August 5, 1998). This matter is not addressed
in this decision.
3Although he argued on appeal that his removal from the deputy position
was part of S1's harassment, complainant never raised this issue in EEO
counseling or an EEO complaint. Further, S1's explanation that the
agency had eliminated the deputy positions in most offices was never
challenged by complainant or shown to be untrue. No other person was
appointed to the deputy position in the Public Affairs Office.