01A02711
02-28-2002
David L. Odom, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
David L. Odom v. Department of the Army
01A02711
February 28, 2002
.
David L. Odom,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A02711
Agency Nos. BEFLFO96044G0050 / BEFLFO9709H0380
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 Information Management Specialist, GS-0301-12, at the Headquarters
of the U.S. Army Corps of Engineers (HQUSACE) at the agency's Washington
D.C. facility. Complainant sought EEO counseling and subsequently filed
a formal complaint on January 9, 1998, and February 29, 1996, alleging
that he was discriminated against on the bases of race (Caucasian), sex
(male), color (white), and reprisal for prior EEO activity when:
(1) on or about February 1, 1996, he was assigned to track outstanding
Ideas of Excellence Program suggestions, which directly conflicted with
his wife's overall responsibility for managing the Ideas of Excellence
Program;
he was denied advancement opportunities such as formal on-the-job
training and details from April 1993 to date;
on August 22, 1997, a management official informed him that the HQUSACE
Chief of Staff, blamed him and was upset with him, concerning the status
of an employee's award;
on August 7, 1997, a management official relayed to him the Director's
concern regarding his overuse of unplanned sick leave.
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. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant failed to established
a prima facie case of reprisal, sex, race, or color discrimination.
The agency also concluded that assuming arguendo that complainant
establish a prima facie case, management had articulated legitimate
nondiscriminatory reasons for its actions. Specifically, regarding claim
(1), the agency found that complainant was given the assignment because
suggestions fell within his area of responsibility. The agency also found
that when complainant was given the assignment he did not tell management
that he believed it conflicted with his wife's responsibilities or that he
was dissatisfied with it. The agency further found that when management
learned of his dissatisfaction, another employee was assigned to track
the suggestions and he was relieved of the assignment.
Regarding claim (2), the agency found that management provided credible
testimony concerning complainant's career development and progression.
The agency found that complainant did not have personnel management
experience, so management gave him numerous assignments to help him
develop personnel management skills. The agency also found management
arranged for complainant to be certified as a personnel management
evaluator and examiner, management assigned the award program for him,
and that complainant was nominated to attend a Technical Services Officer
course. The agency further found that management attempted to have
complainant detailed to an operating level civilian personnel office,
but was unsuccessful. Finally, the agency noted that complainant was
hired as GS-05, and ultimately promoted to GS-12, and that it was not
true that management denied complainant advancement opportunities.
Regarding claim (3), the agency found that the management official
involved denies that he blamed complainant for the status of the award
in question, or that he insinuated that he was upset with complainant.
The agency found that complainant's conversation with management about the
award was motivated by the fact that complainant was named as a witness
in a complaint filed concerning the award, not because of complainant sex,
race, color or complainant's protected activity. Finally, the agency
found that there is nothing in the record that shows that complainant
suffered an adverse personnel action because of his conversation with
management.
Regarding claim (4), the agency found that discussing sick leave
procedures with complainant was a proper discharge of management
responsibilities, because management had concerns about complainant's use
of sick leave. The agency found that during the discussion management
asked complainant to speak with someone in the office, rather than leave a
message on an answering machine, when he called for sick leave. The agency
also found that management requested that complainant provide advance
notice, whenever possible and that management discussed complainant's
low leave balance.
CONTENTIONS ON APPEAL
On appeal, complainant essentially reiterates the arguments he made
during the investigation, focusing on the contention that the agency
deliberately assigned him highly controversial and stressful actions
that put him in direct conflict with his wife. Complainant contends
that this strategy was part of a continuing pattern the agency used to
try to break up his marriage.
On appeal, the agency concluded that management offered legitimate
nondiscriminatory reasons for their actions, and that there is no evidence
that indicates those reasons are pretext for discrimination.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in an disparate treatment
case alleging discrimination is a three-step process. McDonnell
Douglas Corporation v. Green, 411 U.S. 792 (1973); see Hochstadt
v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318
(D. Mass.1976), aff'd, 545 F. 2d 222 (1ST Cir. 1976) (applying McDonnell
Douglas to retaliation cases). First, complainant must 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 a
legitimate, nondiscriminatory reason for its actions. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency
was a pretext for discrimination. Id. at 256.
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination. Furnco Construction Co. v. Waters, 438
U.S. 567, 576 (1978); Shapiro v. Social Security Administration, EEOC
Request No. 05960403 (December 6, 1996). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell Douglas,
a complainant may establish a prima facie case of reprisal showing that:
(1) he or she engaged in a protected activity; (2) the agency was aware
of the protected activity; (3) subsequently, he or she 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 25, 2000). 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. Simens v. Department of Justice,
EEOC Request No. 05950113 (March 28,1996) (citations omitted).
Although the initial inquiry in a discrimination case usually focuses
on whether the petitioner has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated a
legitimate, nondiscriminatory reason for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31,1990).
In such cases, the inquiry shifts from whether the petitioner has
established a prima facie case to whether she/he has demonstrated by a
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
Thus, assuming for the purpose of analysis that complainant established
a prima facie case of race, color, sex and reprisal discrimination,
the Commission finds that the agency has articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, regarding claim
(1), we find that complainant was given the assignment because suggestions
fell within his area of responsibilities. We also find that when
management learned about complainant dissatisfaction, another employee
was assigned to track the suggestions and complainant was relieved of
the assignment. Regarding claim (2), we find that agency management
gave complainant advancement opportunities. For example, agency officials
promoted complainant from GS-05 to GS-12. Regarding claim (3), we find
that nothing in the record shows that management blamed complainant
for the status of the award. The record shows that management had a
conversation with complainant because he was named as a witness in a
complaint filed concerning the award. Finally, regarding claim (4),
the record indicates that management discussed with complainant the sick
leave procedures, because of complainant's low leave balance.
The Commission further finds that complainant failed to present evidence
that more likely than not, the agency's articulated reasons for its
actions were a pretext for discrimination. In reaching this conclusion,
we note that complainant did not rebut any of the agency's reason. For
example, complainant did not dispute that he was promoted to GS-12,
nor that he had a low leave balance.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's contentions on appeal, and 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
February 28, 2002
__________________
Date