01974583
10-14-1999
Edward O. Adams, Appellant, v. Daniel S. Goldin, Administrator, National Aeronautics and Space Administration, Agency.
Edward O. Adams v. National Aeronautics and Space Administration
01974583
October 14, 1999
Edward O. Adams, )
Appellant, )
) Appeal No. 01974583
v. ) Agency No. NCN-92-MSFC-B035R
)
Daniel S. Goldin, )
Administrator, )
National Aeronautics and Space Administration, )
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of national origin (Mexican-American) and 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. The appeal is accepted in accordance
with EEOC Order No. 960.001.
BACKGROUND
On March 26, 1992, appellant filed a formal EEO complaint, alleging
discrimination on the bases of national origin and age (47) when, on
October 17, 1991, he was removed from his duties as an EEO counselor and
harassed by being requested, via memoranda and telephone, to provide the
files, documents, and other pertinent information for the cases on which
he was presently working. On May 29, 1992, the agency issued a final
decision dismissing the complaint on procedural grounds upon concluding
that it was untimely and the subject of a previously filed grievance.
On appeal, the Commission upheld the agency's decision.<1> The Commission
granted appellant's request for reconsideration and reversed its earlier
decision, thereby remanding the case for investigation in accordance with
the proper regulations.<2> During the investigation, appellant amended
his original complaint, dropping age as a basis of discrimination and
adding reprisal.
The central event in this case occurred on October 17, 1991 when appellant
was given a memorandum, effective upon receipt, which relieved him of his
duties as an EEO counselor. In addition, per the memo, appellant was
required to forward all of his unclosed cases to the Director of Equal
Opportunity. On November 1, 1991, appellant was sent another memorandum
requesting counselor's reports for those cases in which he had issued
final interview letters. According to the memorandum, appellant was
required to prepare these reports at the time of issuance of the final
interview materials. Because the agency had not been forwarded a copy
of the required counselor's reports, the memorandum was an attempt to
get that information.
ANALYSIS
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), Hochstadt v. Worchester Found. 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). Appellant has the initial burden of establishing a prima facie
case of discrimination. McDonnell Douglas, at 802. If appellant meets
this burden, then the burden shifts to the agency to articulate some
legitimate, nondiscriminatory reason for its challenged action. Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
If this is done, then the appellant must prove, by a preponderance of the
evidence, that the legitimate reason articulated by the agency was not
its true reason, but rather a pretext for discrimination. Id. at 256.
National Origin
Although the initial inquiry in a discrimination case usually focuses
on whether the appellant 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 appellant has
established a prima facie case to whether s/he has demonstrated by a
preponderance of the evidence that the agency's reason for its actions
merely was a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-17
(1983).
The Commission finds that the agency has articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the agency
contends that appellant was relieved of his duties as an EEO counselor
because, in violation of the Marshall Management Instruction (MMI)
3713.2A, he insisted on performing his counselor duties on a full
time basis. The MMI states that counseling duties are to be performed
on a part-time basis. Upon determining that any more than two cases
at a time would interfere with the counselors' regular duties and that
the counselors could not adequately counsel more than two employees at
a time and meet time requirements, established by the agency's main
EEO office and the EEOC, for the pre-counseling complaints, the EO
Director instructed all of the counselors not to devote any more than
ten percent of their time to EEO duties. According to the agency,
because appellant had a case load of more than two, his reports were
submitted in an untimely manner. When asked why his case load exceeded
the two-case limit (at the time, he had approximately three or four
cases in counseling), appellant responded that the aggrieved persons had
specifically selected him to be his or her counselor.<3> At this point,
the agency allowed him to continue his tenure as EEO counselor. It was
not until appellant's case load ballooned to seven that he was relieved of
his EEO duties. As for its requests concerning the counselor's reports on
which the appellant had conducted counseling, the agency contends that
those requests did not constitute harassment. According to several
agency officials, the complaints manager usually called all of the
EEO counselors to remind them to submit their counselor's reports.<4>
Regarding the counselor's reports that appellant had not completed at
the time he was removed as counselor, the complaints manager stated that
the office was simply attempting to get information required from him in
its efforts to process complaints consistent with applicable regulations.
Because the agency has articulated a legitimate, nondiscriminatory
reason for the alleged discriminatory events, appellant now bears the
burden of establishing that the agency's stated reasons is merely a
pretext for discrimination. Shapiro v. Social Security Administration,
EEOC Request No. 05960403 (December 6, 1996). Appellant can do this
by showing that the agency was motivated by a discriminatory reason.
Id. (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)).
In this case, appellant has failed to meet that burden. In response
to the agency's contention as to why he was relieved of his duties as
counselor, appellant argues that he never used more than ten percent of
his time working on EEO cases. However, he does not refute, nor does
he submit evidence tending to disprove, the agency's assertion that
he had amassed a caseload of seven, five more than the two-case limit.
As for the allegation of harassment, appellant argues that he was the
only counselor from whom the agency requested counselors' reports.
However, per the affidavits of two other counselors, neither of whom
is in appellant's protected group, other counselors, including them,
received such requests as well. Based on the foregoing, the Commission
finds that appellant's evidence was insufficient to establish pretext.
Reprisal
In order to establish a prima facie case of discrimination for an
allegation of reprisal, appellant must show: (1) that he engaged in
protected activity, e.g., participated in a Title VII proceeding; (2)
that the alleged discriminating official was aware of the protected
activity; (3) that he was disadvantaged by an action of the agency
contemporaneously with or subsequent to such participation; and (4)
that there is a causal connection between the protected activity and
the adverse employment action. See Hochstadt, at 324; see also Mitchell
v. Baldridge, 759 F.2d 80, 86 (D.C. Cir. 1985); Burris v. United Telephone
Co. of Kansas, Inc., 683 F.2d 339, 343 (10th Cir. 1982), cert denied,
459 U.S. 1071 (1982). 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.
Grant v. Bethlehem Steel Corp., 622 F.2d 43 (2nd Cir. 1980).
To support his reprisal claim, appellant demonstrated that he had filed
a previous EEO complaint before he was appointed to EEO counselor,
thereby proving that he had engaged in previously protected activity.
The agency does not contend that the acting agency official was unaware
of appellant's prior engagement in the protected activity, therefore,
particularly in light of the fact that he was the Director of Equal
Opportunity, we presume that he (the acting official) did know about
appellant's previous EEO complaint. By demonstrating that he was relieved
of his duties as an EEO counselor after he field his previous complaint,
we find that he has proven that he was subsequently disadvantaged by
an adverse action. However, because appellant was selected as an EEO
counselor after the filing of the previous complaint, we find that
he has failed to establish the necessary nexus between the protected
activity and the adverse action. As such, we hold that he has failed
to establish a prima facie case regarding his claim of reprisal.
CONCLUSION
Accordingly, after a careful review of the record, including appellant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we hereby AFFIRM the agency's
final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
Oct. 14, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 Adams v. National Aeronautics and Space Administration, EEOC Appeal No.
01923285 (September 4, 1992)
2 Adams v. National Aeronautics and Space Administration, EEOC Request
No. 05930959 (August 10, 1994)
3 It is the aggrieved person's prerogative to select a counselor.
However, on occasion when the aggrieved employee calls the EO office and
solicits a counselor, the office provides him/her a list of available
counselors. The employee makes his/her selection from that list.
The monthly report, required from each counselor, keeps the EO office
informed as to the number of cases on which each counselor is working.
If a report reflects that a counselor has too many cases in counseling,
the EO Director cautions the counselor of his/her caseload, and advises
him/her not to accept any more cases until he or she reduces his or her
caseload.
4 This contention is supported by affidavits from two other EEO
counselors; one Black, the other White.