01990236
05-22-2000
Donald F. Capatosto, Complainant, v. William S. Cohen, Secretary, Department of Defense (Defense Logistics Agency), Agency.
Donald F. Capatosto v. Department of Defense
01990236
May 22, 2000
Donald F. Capatosto, )
Complainant, )
)
v. )
) Appeal No. 01990236
) Agency Nos. XL94036, XL94038,
William S. Cohen, ) XL95015, XL95024.
Secretary, )
Department of Defense )
(Defense Logistics Agency), )
Agency. )
____________________________________)
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, as amended,
42 U.S.C. � 2000e et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 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 in various ways on the bases of age and reprisal (prior protected
activity).
The record reveals that during the relevant time, complainant was employed
as an Aerospace Engineer, GS-861-12, at the agency's Bethpage, New York
facility. Believing he was a victim of discrimination, complainant sought
EEO counseling and subsequently filed four separate formal complaints on
August 29, 1994 (XL-94-036), September 30, 1994 (XL-94-038), December 16,
1994 (XL-95-015), and March 28, 1995 (XL-95-024). At the conclusion of
the agency's investigations, 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. Complainant requested final
decisions on each of his four complaints. In a single decision, which
consolidated the complaints, the agency found that complainant failed
to demonstrate discrimination. From this September 9, 1998 decision,
complainant now appeals.
Complaint #1 (XL-94-036)<2>
Complainant argued that he was discriminated against in reprisal for
his protected EEO activity when:
1. On June 20, July 19, and 21, 1994, the agency allegedly denied his
request for 40, 80 and 80 hours of leave respectively of official time
to prepare a response to his OFO appeal of Case No. XL94013;
2. On July 19 and 21, 1994, the agency allegedly denied him official time
to prepare a response to his complaint of employment discrimination for
Case No. XL93009;
3. On an unknown date, the agency denied him official time to appeal
his complaint, Case No. XL94023, and
4. On an unknown date, the agency denied him official time to appeal
his complaint, Case No. XL94023.
The agency found that these allegations lack merit. According to
the agency, complainant was granted leave to prepare his EEO cases
and appeals. In reaching this determination, the agency relied on the
affidavit of the activity's Deputy Commander (RMO1). RMO1 maintained that
he approved official time for complainant's EEO and appeals processing.
As the legal basis for its conclusions, the agency argues that complainant
failed to establish that he was subject to an adverse action affecting
a term, condition, or privilege of his employment.
Our regulations found at 29 C.F.R. � 1614.605(b) provide that, "[i]f
the complainant is an employee of the agency, he or she shall have a
reasonable amount of official time, if otherwise on duty, to prepare
the complaint and to respond to agency and EEOC requests for information."
After reviewing the investigative file, we find that complainant was
afforded a reasonable amount of official time to process the subject
appeals and EEO complainants and therefore AFFIRM the agency's ruling
on this ground with respect to these issues.
Complaint #2 (XL-94-038)<3>
Complainant argued that he was discriminated against because of his age
(DOB: 7/3/35) and/or in reprisal for previous protected activity when:
5. On May 20 and September 22, 1994 he requested, but was denied a
response to a job series change from GS-861-12, Aerospace Engineer,
to GS-855-12, Electronic Engineer.
In response, the agency reports that it promptly responded to
complainant's requested series change. In reaching this conclusion,
the FAD relied upon an Inter-Office Memorandum dated June 13, 1994.
According to the agency, this memorandum set out the new series change
process and informed complainant that he could qualify for a series
change if a position became available. In rebuttal, the complainant
argues that the Memorandum is over broad and nonresponsive to his request.
To establish a prima facie case of reprisal discrimination, the
complainant must show that: (1) the complainant engaged in protected
activity; (2) the alleged discriminating official was aware of the
protected activity; (3) the complainant was adversely affected by an
action of the agency; and (4) there is a connection between the protected
activity and the adverse employment action. See Hochstadt v. Worcester
Found. for Experimental Biology, Inc., 425 F. Supp. 318,324 (D. Mass.),
aff'd, 545 F.2d 222 (1st Cir. 1976). To establish a prima facie case
of age discrimination, complainant must show that: (1) he was at least
forty years old at the time of the adverse action; (2) he was qualified
for the position; (3) he was not selected for the position; and (4) he
was accorded treatment different from that given to persons otherwise
similarly situated who are not members of his protected group or are
considerably younger than he. See O'Conner v. Consolidated Coin Caterers
Corp., 517 U.S. 308 (1996); Carver v. Department of the Interior, EEOC
Request No. 05930832 (May 12, 1994).
We will apply this authority to the facts of the instant case. Regarding
complainant's claim that he was discriminated against on the basis of age,
we find that complainant has failed to make a prima facie case of age
discrimination. Complainant fails to make a prima facie case because
he failed to demonstrate, any inference of discriminatory animus.
Complainant could have established an inference of discrimination
by, inter alia, making comparisons with similar employees who were
treated differently. Assuming, that complainant was able to make a
prima facie case, under the ADEA, the complainant must show that his
age was a determining factor in the agency's adverse action, that is,
considerations of age made a difference in the agency's action. Hazen
Paper Company v. Biggins, 507 U.S. 604, 610 (1993) (age had "a role in
the process and a determinative influence on the outcome"). We find
that complainant failed to demonstrate that age was the determining
factor when the agency denied him the requested job series change.
The agency indicates that complainant was not denied a prompt response
to his request for information regarding the series change. Further the
agency maintains that complainant did not use the agency's series change
procedure and that the agency did not have positions at series level
requested by complainant. We find the agency's stated reason believable.
Concerning complainant's reprisal claim, we will assume for the sake
of this analysis, that complainant is able to make a prima facie case.
However, we find that complainant fails to carry the ultimate burden
of persuasion. It is complainant's burden to demonstrate by a
preponderance of the evidence that the agency's action was 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 and retaliation. Texas Department Of Community Affairs
v. Burdine, 450 U.S. 248, 253 (198 1); St. Mary's Honor Center v. Hicks,
509 U.S 502 (1993). Relative to our discussion, above, of the agency's
articulation, we find that complainant does not prove that the agency's
stated reason is a pretext for retaliation.
Accordingly, we AFFIRM the FAD's findings of nondiscrimination with
respect to claim 5.
Complaint #3 (XL-95-015)
Complainant argued that he was harassed and discriminated against because
of his age (DOB: 7/3/35) and/or in reprisal for previous protected
activity when:
6. On November 28, 1994, complainant's second level supervisor counseled
complainant on the correct pronunciation of his name.
7. On December 9, 1994, complainant was issued a Notice of Proposed
Reprimand and otherwise harassed in various ways.
The FAD concluded that the agency appropriately disciplined complainant
for failure to carry out a supervisor's instructions, discourteous
conduct and mispronunciation of his second-line supervisor's name.
Complainant argues that he does not deserve the reprimand and that he
mistakenly mispronounced his second-line supervisor's name.
Where, as here, the agency articulates legitimate and nondiscriminatory
reasons for its actions, we can dispense with the prima facie
inquiry and proceed to the ultimate stage of the analysis, i.e.,
whether the complainant has proven by preponderant evidence that the
agency's explanation was a pretext for actions motivated by prohibited
discriminatory animus. St. Mary's Honor Center v. Hicks, 509 U.S. 502,
519 (1993); United States Postal Service Board of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997).
We find that the agency has established legitimate nondiscriminatory
reasons for its actions, namely, complainant's discipline is directly
related to his failure to carry out a supervisor's instructions,
discourteous conduct and repeated mispronunciation of his second-line
supervisor's name. Accordingly we will pass over the prima facie analysis
with respect to this claim.
Complainant does not contest the factual basis which preceded his
counseling and Notice of Proposed Reprimand. Although complainant argues
that the true reason for the discipline is his protected class status, we
are not convinced. Our review of complainant's conduct and the discipline
for that conduct does not permit us to find discrimination. The agency's
stated reason for discipline is established by the record. Complainant,
on the other hand, failed to establish that the agency's articulation
is pretext for prohibited discrimination.
We must also consider complainant's harassment claim. To establish
a prima facie case of hostile environment harassment, a complainant
must show that: (1) he belongs to a statutorily protected class; (2)
he was subjected to harassment in the form of unwelcome verbal or
physical conduct involving the protected class; (3) the harassment
complained of was based on the statutorily protected class; and (4)
the harassment affected a term or condition of employment, and/or
had the purpose or effect of unreasonably interfering with the work
environment and/or creating an intimidating, hostile or offensive working
environment. Jackson v. United States Postal Service, EEOC Appeal
No. 01972555 (April 15, 1999); 29 C.F.R. � 1604.11. Evidence of the
general work environment, involving employees other than the complainant,
is also relevant to the issue of whether a hostile environment existed
in violation of the anti-discrimination laws. Id.
Complainant fails to make a prima facie case of harassment. In so
finding, we conclude that complainant failed to show severe or pervasive
conduct and also failed to make a showing that he was subjected to
harassment in the form of verbal or physical conduct. Accordingly,
we find that complainant has not established harassment nor has he
established that he was subject to reprisal or age discrimination.
Complaint #4 (XL-95-024)<4>
Complainant argued that he was discriminated against in reprisal for
previous protected activity when:
8. During a meeting on January 2, 1995, his supervisor restricted him
from having his elected representation.
9. On January 6, 1995 his request to the RMO1 regarding official time
went unanswered.
The FAD concluded that there is no evidence that the events alleged
by the complainant occurred. The FAD supported this conclusion by
revealing that on the date of the alleged conduct, Monday, January 2,
1995, the complainant was not on duty as that day was a Federal Holiday.
With respect to complainant's allegation that he was denied official
time to prepare EEO related documents, the agency found no evidence
to support complainant's allegation that he was denied official time.
We find the agency's reasons established by the record.
As previously outlined, we can dispense with the prima facie
inquiry and proceed to the ultimate stage of the analysis, i.e.,
whether the complainant has proven by preponderant evidence that the
agency's explanation was a pretext for actions motivated by prohibited
discriminatory animus. St. Mary's Honor Center v. Hicks, 509 U.S. 502,
519 (1993).
We have considered complainant's allegation that he was denied
representation while meeting with an agency official. The record
establishes that a meeting did occur, and that complainant was not allowed
to call in a witness. We find that agency policy permits representatives
in official meetings but does not allow witnesses. The agency submits
that at the meeting in question, complainant requested a witness and
not a representative. The agency argues that it would have permitted
the complainant to have a representative present.
The parties are at odds concerning the issue of fact of whether
complainant was denied representation at the meeting. Complainant
argues that he was denied a request for representation, and the agency
argues that complainant was allowed representation. Since the burden
of persuasion remains with the complainant at all times, we find that
complainant failed to meet his burden.
We next address complainant's allegation that his request for official
time to prepare EEO related documents went unanswered. We find the
complainant failed to submit any evidence that he was denied official
time. The agency contends that complainant, was in fact given a
reasonable amount of official time to prepare his EEO cases. We find
that here complainant has also failed to meet his burden.
Accordingly, we AFFIRM the FAD's holdings concerning claims 8 and 9.
CONCLUSION
Based upon a review of the record, and for the foregoing reasons, it is
the decision of this Commission to AFFIRM the agency's findings of no
discrimination and/or retaliation.
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:
05/22/00 ____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the 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.
2 In Capatosto v. Department of Defense, EEOC Request No. 01953094
(November 27, 1995), we reversed the agency's dismissal of this claim
for failure to provide requested information pursuant to 29 C.F.R. �
1614.107(g), and remanded the claim for investigation. Subsequently,
the Commission denied the agency's request for reconsideration, EEOC
Request No. 05960235 (January 6, 1997), as untimely.
3 This complaint, XL-94-038 was previously reviewed by the Commission.
See Capatosto v. Department of Defense, EEOC Request No. 01953648
(January 30, 1996). We reversed the agency's dismissal of this claim
for failure to state a claim pursuant to 29 C.F.R. � 1614.106, and
remanded the claim for investigation. In Capatosto we found that
the agency incorrectly identified complainant's claim. We found that,
"...the crux of appellant's complaint is that the agency has failed to
provide him with his requested change in job series." Id.
4 In Capatosto v. Department of Defense, EEOC Request No. 01961141
(February 21, 1997) we reversed the agency's dismissal of these claims
and remanded them for investigation.