01a61242
05-26-2006
Donald J. Deiser, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Donald J. Deiser v. Department of the Interior
01A61242
May 26, 2006
.
Donald J. Deiser,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A61242
Agency No. WBR-03-017
Hearing No. 380-2004-00113X
DECISION
Complainant filed an appeal with this Commission from the November 8,
2005 agency decision which implemented the September 27, 2005 decision
of an EEOC Administrative Judge (AJ) finding no discrimination.
Complainant alleged that the agency discriminated against him on the bases
of age (D.O.B. December 15, 1948) and reprisal for prior EEO activity
when: (1) on March 14, 2003, the agency sent complainant a harshly
worded electronic mail message questioning his authority to �upcode�
employees; and (2) the agency failed to allow complainant travel money
and administrative leave to conduct a wage survey in April 2003.<1>
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an AJ.
The AJ issued a decision without a hearing (summary judgment), finding
no discrimination.
The record reveals that in March 2003, complainant upcoded
(noncompetitively and temporarily promoted) Employee A from a Firewatch
position to a Machinist position, a job for which Employee A had
previously been found unqualified. The record also reveals that
upon learning that management was questioning his decision to upcode
Employee A, complainant called the Administrative Officer and told
her that management had no right to tell him whom he could upcode.
The record also reveals that the Human Resources Officer (HRO) for the
Pacific Northwest Region sent an electronic mail to complainant's first
line supervisor telling him that the HRO and complainant's first line
supervisor needed to talk. The record further reveals that the HRO
asked in the electronic mail when did complainant take over the HRO's
job and stated that the HRO would be happy to file a prohibited personnel
practice violation against complainant or any other employee who wanted
to violate the law. The HRO also stated in the electronic mail that he
�would be more than happy to give [complainant] a direct order to cease
from illegally appointing employees who were not qualified to perform
certain work on the project.� The HRO also stated that he was �tired
of guys like [complainant] lobbing these grenades and I am supposed to
sit back and get my ??? blown off and shut my mouth.�
The record reveals that complainant's supervisor forwarded the electronic
mail to complainant along with an electronic mail instructing complainant
not to upcode Employee A. In his electronic mail to complainant,
complainant's supervisor stated that he disagreed with other members of
management and with Human Resources and he thought that complainant's
actions were appropriate and made efficient use of available work
force. Complainant's supervisor also stated that he disagreed with
the Administrative Officer's statement that complainant had been
unprofessional and accusatory during a telephone conversation with her.
The record reveals further that prior to the electronic mail dispute,
complainant had been selected to represent supervisors in a pending wage
survey for 2003. The record reveals that complainant sent an electronic
mail to the Administrative Officer on March 4, 2003, informing her of
his selection and requesting that a site survey commence on April 1,
2003. The record further reveals that complainant also requested that
the agency provide travel and administrative time for his involvement.
The record reveals that the agency did not provide complainant with travel
funds or administrative leave to participate in a data collection team.
The record further reveals that Employee B, an employee in the Human
Resources Offices in Boise, collected the wage data for supervisory
positions while he was participating in data collection activities
with negotiated rate employee representatives and acquired additional
information by telephone and electronic mail. The record reveals that
on June 10, 2003, Employee B provided complainant with the results of
the wage survey data that Employee B had collected. The record reveals
further that on June 11, 2003, complainant sent an electronic mail
stating that he could not sign the survey data because the draft had
been prepared without his input and that he was available to conduct a
site survey. The record reveals that the agency authorized complainant
to travel to private utilities in July 2003, to verify data related to
the supervisory positions. The record further reveals that complainant
discussed the collected data at a meeting.
In his decision, the AJ found that complainant failed to establish
that receiving a gruff electronic mail and being denied travel and
administrative leave made him an aggrieved employee, reasoning that these
actions did not affect a term, condition or privilege of complainant's
employment. The AJ also found that the gruff electronic mail was not
severe enough to rise to the level of harassment. The AJ found that
even if the agency's decision not to authorize travel was an adverse
employment action, complainant has not been able to show a connection
between his age and the agency's action or that a similarly situated
person outside of his protected group was treated more favorably. The AJ
noted that Employee B was the only person allowed to travel to conduct
the survey and he was already in travel status to conduct the negotiated
rate employee survey and, unlike complainant, he worked in the regional
Human Resources Office. Regarding the harsh upcoding electronic mail
incident, the AJ found that complainant was unable to show there was
another similarly situated younger employee who was treated differently.
The AJ also found that complainant provided no information showing that
the electronic mail was issued because of his age. The AJ also found
that complainant had not only failed to identify comparatives but had been
able to provide evidence from which an inference of discrimination could
be drawn. The AJ however found, assuming that complainant had stated
claims, that an inference of retaliatory discrimination could be drawn.
The AJ found further that even if complainant could establish a prima
facie case regarding claim 1 and claim 2, the agency had articulated
legitimate, nondiscriminatory reasons for its actions and complainant
had failed to show the agency's reasons were pretext for unlawful age
discrimination or reprisal. Regarding the agency's articulated reasons,
the AJ noted that complainant's decision to upcode was challenged because
the action resulted in temporarily promoting an employee to a position for
which he had previously been found unqualified. The AJ also noted that
supervisory representatives did not participate in site visits in order
to save agency funds and because the agency had determined that adequate
results could be achieved by gathering information over the telephone.
The AJ further noted that in 2003, Employee B was already in travel
status for site visits as part of the negotiated rate employee survey
and that the agency had determined Employee B was capable of gathering
informing regarding the wage survey for the supervisors at the same time.
The AJ also noted that after complainant raised concerns about the data
Employee A had provided, complainant was authorized to travel to sites
to verify the data in person.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
In a complaint which alleges disparate treatment and there is an absence
of direct evidence of discrimination, the allocations of burdens and
the order of presentation of proof is a three-step process. A claim
of disparate treatment is examined under the three-part analysis first
enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he or she must first 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. See 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.
See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). If the agency is successful in meeting its burden, complainant
must prove, by a preponderance of the evidence, that the legitimate reason
proffered by the agency was a pretext for discrimination. Id. at 256.
As an initial matter, the Commission finds that claim 1 does not state
a claim. Complainant has not shown that he suffered a harm or loss to
a term, condition, or privilege of his employment because of the tone
of the electronic mail or the questioning of complainant's decision
to upcode Employee B. Nor do we find that claim 1, even if considered
with the other claims in the complaint, is sufficiently severe so as to
state a claim of harassment. Therefore, we find that claim 1 is properly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).
The Commission finds that grant of summary judgment was appropriate, as
no genuine dispute of material fact exists. The Commission also finds
that the agency has articulated legitimate, nondiscriminatory reasons
for not having complainant conduct the survey. Although the initial
inquiry in a discrimination case usually focuses on whether complainant
has established a prima facie case, the prima facie inquiry may be
dispensed with where, as here, the agency has articulated legitimate,
nondiscriminatory reasons for its actions. In such cases, the inquiry
shifts from whether complainant has established a prima facie case and
proceeds to the ultimate issue of whether complainant has shown by a
preponderance of the evidence that the agency's actions were motivated
by discrimination. See United States Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990). Here, the
agency has shown that it did not send complainant to conduct the survey
because it wanted to save funds and the agency could save funds by using
Employee B's services because Employee B was already in travel status
for site visits as part of another survey. Complainant has not shown
that the agency's reasons were pretextual. Moreover, construing the
evidence to be most favorable to complainant, complainant has failed to
show by a preponderance of the evidence that the agency's actions were
motivated by discriminatory animus towards complainant's protected class
or in retaliation for his prior EEO activity.
The agency's decision is AFFIRMED.
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
May 26, 2006
__________________
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
______________________________
1The record reveals, and the AJ's decision reflects, that the agency
dismissed two other claims in complainant's complaint: (1) a retroactive
pay raise for supervisors; and (2) a 1999 nonselection on the grounds of
untimely EEO Counselor contact. On November 12, 2004, the AJ affirmed
the agency's dismissal of these two claims (pay raise and nonselection).
Complainant has not raised these issues in his appeal and they are not
at issue in this appeal.