Danny Weekley, Complainant,v.Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionAug 9, 2000
01995686 (E.E.O.C. Aug. 9, 2000)

01995686

08-09-2000

Danny Weekley, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.


Danny Weekley v. Department of Veterans Affairs

01995686

August 9, 2000

.

Danny Weekley,

Complainant,

v.

Hershel W. Gober,

Acting Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01995686

Agency No. 96-0211

DECISION

Danny Weekley (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, as amended, 42 U.S.C. � 2000e et seq. and Section 501 of the

Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 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). Complainant alleged that he was

discriminated against on the bases of race/color (White), sex (male),

disability (torn knee cartilage), and reprisal (prior EEO activity)

when he was harassed by the Industrial Hygienist (IH).

BACKGROUND

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

as a Carpenter, WG-9, at the agency's Medical Center in Birmingham,

Alabama. Complainant was also serving as a union safety officer.

Believing he was a victim of discrimination, complainant sought EEO

counseling and subsequently filed a formal complaint on August 15, 1995,

alleging harassment by IH. Complainant alleged that IH asked complainant

to leave his office during a May 16, 1995 meeting on safety issues,

degraded and talked down to him in the presence of other employees,

failed to notify him of meetings and events involving the union safety

office, failed to give him safety documents that he gave to the other

union officers, and wrote him up for unsafe work practices in an effort

to downgrade his performance appraisals. Complainant also alleged that IH

called him a �white racist� in a January 1994 meeting and that complainant

therefore felt that the later incidents were racially-motivated. At

the conclusion of the investigation, complainant was informed of his

right to request a hearing before an EEOC Administrative Judge (AJ) or

alternatively, to receive a final decision by the agency. Complainant

requested a hearing and the case was assigned to an AJ.

The AJ subsequently recommended dismissal of the case based on the fact

that a Notice of Intent to issue Findings/Conclusions without a hearing

that was sent to complainant by the AJ, was returned due to the expiration

of complainant's forwarding order. It appears from the record that the AJ

found that this justified a recommended dismissal based on the Commission

regulation that allows dismissal if the complainant cannot be located and

has not responded within 15 days to a notice of proposed dismissal sent

to his address. See 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified

and hereinafter referred to as 29 C.F.R. � 1614.107(a)(6)). The agency,

finding that there was sufficient information in the record to make a

determination on the merits, issued a FAD finding no discrimination.

In its FAD, the agency first found that the �white racist� comment

was not direct evidence of discriminatory intent. The agency then

found that complainant established a prima facie case of race and sex

discrimination in regard to the May 16, 1995 incident, but that IH had a

legitimate non-discriminatory reason for acting as he did. Specifically,

IH testified that complainant was fabricating occupational safety and

health incidents in the presence of the OSHA compliance officer in an

attempt to discredit the agency's safety program. The agency concluded

that complainant failed to establish that this articulation was a pretext

for race or sex discrimination.

The agency next noted that complainant failed to establish a prima

facie case of disability or reprisal discrimination. The agency found

that complainant failed to establish that he had an impairment that

substantially limited a major life activity. Furthermore, the agency

concluded that while complainant had testified against management in EEO

investigations, IH did not know of the activity, as he was not involved

in the investigations.

The agency also concluded that complainant did not establish a prima

facie case on any basis in regard to his other allegations. The agency

noted that complainant neither indicated any specific meetings or events

about which he lacked information nor identified any other employee who

failed to follow safety procedures but was not written up.

Finally, the agency determined that complainant failed to establish a

prima facie case of harassment, noting that the difficulties between IH

and complainant stemmed from their conflicts over safety issues, and

not from a discriminatory motive on the part of IH. It is from this

FAD that complainant now appeals.

Complainant raises no contentions on appeal and the agency asks that

its FAD be affirmed.

FINDINGS AND ANALYSIS

As an initial matter, we find that the AJ incorrectly recommended

dismissal based on complainant's failure to respond to the AJ's Notice

of Intent. The AJ never sent complainant a notice of proposed dismissal,

as required by 29 C.F.R. � 1614.107(a)(6). However, the agency correctly

determined that there is sufficient information in the record to allow

for a determination on the merits of the complaint and, as complainant

does not request a hearing on appeal, we will continue with our analysis

of the merits of his complaint.

Before turning to complainant's specific allegations, we note that even

assuming IH called complainant a �white racist� in January 1994, the

comment is not direct evidence that the acts at issue were motivated

by discriminatory animus. Commission guidance states that �[d]irect

evidence of discriminatory motive may be any written or verbal policy

or statement made by a respondent that on its face demonstrates a bias

against a protected group and is linked to the complained of adverse

action.� (emphasis added). See Revised Enforcement Guidance on Recent

Developments in Disparate Treatment Theory, EEOC No. 915.002, at 6 (July

14, 1992). Here, although the record establishes that IH did state

that complainant was a �white racist� or something along those lines,

there is nothing to link this January 1994 statement with the actions

complained of in the current complaint. While we find that this evidence

is not direct evidence of discriminatory motive, it will be considered

along with any other indirect evidence in the record.

Disparate Treatment

Although complainant noted on the complaint form that he was alleging

harassment, a review of his affidavit indicates that he also felt that he

was treated differently than similarly situated individuals outside his

protected groups. We therefore begin with an analysis of this disparate

treatment claim.

Applying the standards set forth in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973); Prewitt v. United States Postal Service, 662 F.2d

292, 310 (5th Cir. 1981); 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 discrimination by a preponderance of the evidence.

In so finding, we note that while complainant may have established

a prima facie case of discrimination in regard to the May 16, 1995

incident, he failed to establish by a preponderance of the evidence that

IH's explanation for his behavior was a pretext for discrimination.<2>

IH's testimony that he asked complainant to leave due to complainant's

antagonistic behavior is supported by the testimony of two witnesses.

Both the black female union officer who attended the meeting and the

OSHA compliance officer testified that IH and complainant got into a

disagreement over safety issues and that the discussion became very

antagonistic. The only evidence provided by complainant that suggests a

discriminatory motivation is the �white racist� comment made by IH more

than a year prior to the event at issue. This comment, standing alone,

is not enough to establish that the agency's explanation is a pretext

for discrimination.

In regard to complainant's claim that IH reported him for committing

unsafe work practices in an effort to affect his performance appraisal,

complainant failed to establish a prima facie case of sex, disability or

reprisal discrimination in that he failed to name any similarly situated

employees who IH did not report for violating safe work practices.

Moreover, complainant did not provide any other evidence that raised an

inference of discrimination on these bases. While the �white racist�

comment may be enough to raise an inference of race discrimination in

any action taken by IH against complainant, IH articulated a legitimate

nondiscriminatory reason for having written complainant up for unsafe work

practices, namely, that complainant was not following safety procedures in

dealing with asbestos. Complainant failed to establish by a preponderance

of the evidence that this explanation was a pretext for discrimination.

Finally, we agree with the agency that complainant failed to establish

a prima facie case of discrimination on any basis in regard to

the remaining issues. Complainant failed to indicate any particular

meetings or information that IH neglected to give him. Complainant did

not describe any specific incidents during which IH degraded him in front

of other employees, other than the May 16, 1995 incident discussed above.

Moreover, even assuming that complainant established a prima facie case

of discrimination in regard to these issues, the evidence in the record

indicates that the bad relationship between IH and complainant stemmed

from their conflicts over safety issues. Several witnesses, including

IH and complainant, testified that the two men had different views

about safety issues and constantly were in conflict for that reason.

Again, the �white racist� comment is not sufficient to establish that

it was race, rather than a difference of opinion over safety issues,

that led to conflict between IH and complainant.

Harassment

Turning to complainant's claim of harassment, a complainant may assert a

Title VII cause of action for harassment if the discriminatory conduct

was so severe or pervasive that it created a hostile work environment

on the basis of his race, color, gender, religion, national origin

or retaliation. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21

(1993); EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance

on Harris v. Forklift Systems, Inc. at 3, 6; Cobb v. Department of

the Treasury, EEOC Request No. 05970077 (March 13, 1997). Moreover,

Commission guidance establishes that this formulation applies to

allegations of disability harassment as well. See Enforcement Guidance

on Harris v. Forklift Systems, Inc., EEOC No. 915-002 (March 8, 1994).

Here, complainant has failed to provide any competent evidence to

establish that the actions taken by IH were motivated by his sex,

disability or prior EEO activity. Several witnesses testified that the

conflict between IH and complainant stemmed from their disputes over

safety issues. While it seems that both IH and complainant partially

attributed actions of the other to racial animus, complainant provided

insufficient evidence to establish that it was his race, rather than

his attempts to effect the safety policy positions of IH, that led to

the actions at issue.

Accordingly, after a thorough review of the record, including arguments

and evidence not addressed in this decision, we AFFIRM the agency's

finding of no discrimination.

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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

August 9, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

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 Because the agency articulated a legitimate nondiscriminatory reason

for its actions, we will assume for the purpose of this discussion that

complainant established a prima facie case of race, sex, disability and

reprisal discrimination in regard to this issue. See United States

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

Valencia v. United States Postal Service, EEOC Petition No. 03990094

(March 16, 2000)