01a00671
04-03-2000
Donald E. Bullock, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Donald E. Bullock, )
Complainant, )
) Appeal No. 01A00671
v. ) Agency No. MGOJ98029
)
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (�FAD�)
concerning his complaint of unlawful employment discrimination on the
basis of reprisal (prior EEO activity), in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1>
The Commission accepts complainant's appeal in accordance with 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue presented herein is whether the complainant proved by a
preponderance of the evidence that the agency discriminated against him
on the bases of reprisal (prior EEO activity) when he was removed as
acting supervisor during the supervisor's absence.
BACKGROUND
For the relevant time period, complainant was employed as a high voltage
electrical supervisor, WS-2810-10, for the Department of the Air Force,
Maxwell Air Force Base, Alabama. On July 23, 1998, complainant's first
level supervisor (S1) offered complainant the assignment to act as
supervisor during his absence from August 10, 1998 through August 21,
1998. Complainant accepted this offer. Subsequently, on July 25, 1998,
complainant informed his supervisor that during the period he would be
acting supervisor, he would be absent for a day because he was selected
for jury duty. Complainant assured his supervisor that he would be
absent for just a day because he was on medication. Concerned that
complainant may be absent longer than a day, S1 contacted the local
courthouse to determine the possible length of complainant's jury duty.
The clerk at the courthouse informed S1 that the length of complainant's
duty as a juror could not be determined. It should be noted, that S1
did not inquire as to how complainant's medication would affect his duty
as a juror. According to the record, complainant was disqualified from
jury duty on the first day.
Consequently, S1 determined that since complainant may be absent for a
duration longer than a day, he withdrew his offer making complainant
acting supervisor during his absence. Instead, on August 4, 1998,
S1 assigned a less senior, but capable co-worker to act as supervisor
opposed to complainant.
On August 28, 1998, complainant initiated contact with an EEO Counselor.
During the counseling period, complainant stated that he was discriminated
against when he was removed as acting supervisor because he had jury
duty.
Counseling failed, and on October 1, 1998, complainant filed a formal
complaint claiming that he was the victim of unlawful employment
discrimination on the basis of reprisal (prior EEO activity). The formal
complaint was comprised of the matters for which complainant underwent
EEO counseling, discussed above. The record reflects that complainant's
first line supervisor S1 was aware of complainant's prior EEO activity.
On September 24, 1999, the agency issued a FAD because complainant failed
to request either a hearing before an Administrative Judge or a final
agency decision. Therein, the agency determined that even though the
investigator did not make a determination as to whether or not complainant
established a prima facie case of discrimination, the agency did in fact
articulate a legitimate nondiscriminatory reason, which was not rebutted
by the complainant. Therefore, the agency determined that they did not
discriminate against complainant on the basis of reprisal.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973). Complainant has the initial burden of
establishing a prima facie case of discrimination. McDonnell Douglas,
411 U.S. at 802. If complainant meets this burden, then the burden shifts
to the agency to articulate some legitimate, nondiscriminatory reason
for its challenged action. Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Complainant must then prove, by a preponderance
of the evidence,
that the legitimate reason articulated by the agency was not its true
reason, but was pretext for discrimination. Id. at 256.
I. Title VII Claims
A. Prima Facie Case
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination. Shapiro v. Social Security Admin., EEOC
Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas, 411 U.S. at
802). Specifically, in a reprisal claim, according with the burdens set
forth in McDonnell Douglas, and Hochstadt v. Worcester Foundation for
Experimental Biology, 425 F.Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d
222 (1st Cir. 1976), 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 Title VII
protected activity; (2) the agency was aware of his 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
action. Here, the Commission finds that complainant has established a
prima facie case of reprisal discrimination with respect to him being
removed from acting supervisor.
B. Legitimate, Nondiscriminatory Reason
After complainant establishes a prima facie case of discrimination,
the burden now shifts to the agency to articulate a legitimate
nondiscriminatory reason for removing complainant as acting supervisor.
Burdine, 450 U.S. at 253. In this case, the agency proffers that
they removed complainant from acting supervisor because they could not
afford to have an acting supervisor absent for an undetermined amount
of time. The Commission finds that the agency has articulated legitimate
nondiscriminatory reasons for its actions.
C. Pretext for Discrimination
Because the agency has articulated legitimate, nondiscriminatory reason
for its decision to remove complainant as acting supervisor, the burden
reverts back to the complainant to demonstrate by a preponderance of
the evidence that the agency's reasons are a pretext for discrimination.
Shapiro, supra. Complainant can do this by showing that a discriminatory
reason motivated the agency. Id. (citing St. Mary's Honor Center
v. Hicks, 509 U.S. 502 (1993).
After, thorough review of al the evidence of record, the Commission finds
that complainant has failed to meet his burden of establishing, by a
preponderance of the evidence, that the agency's reason for replacing
him as acting supervisor was pretext masking reprisal discrimination.
We note, that while complainant informed his supervisor that he would be
absent for only one day, and in fact he was, the record is still void of
any concrete evidence that he would be absent for just one day. Rather,
the record supports that there was a possibility that complainant could
be absent for a time longer than one day.
CONCLUSION
For the reasons set forth herein, the Commission hereby AFFIRMS the
decision of the agency finding no reprisal discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
April 3, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operation
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 Equal Employment Assistant
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.