Donald E. Bullock, Complainant,v.F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionApr 3, 2000
01a00671 (E.E.O.C. Apr. 3, 2000)

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.