Emile S. Bishara, Complainant,v.Bruce Babbitt, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionMar 20, 2000
01976778 (E.E.O.C. Mar. 20, 2000)

01976778

03-20-2000

Emile S. Bishara, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.


Emile S. Bishara v. Department of the Interior

01976778

March 20, 2000

Emile S. Bishara, )

Complainant, )

) Appeal No. 01976778

v. ) Agency No. FWS-96-033

)

Bruce Babbitt, )

Secretary, )

Department of the Interior, )

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>

Complainant alleges he was retaliated against when: (1) on January 10

and 18, 1996, he received harassing telephone calls from his Supervisor

regarding a request for medical documentation; and (2) on March 14, 1996,

he overheard an unidentified party refer to him as a "troublemaker."

The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to

be codified at 29 C.F.R. � 1614.405). For the following reasons, the

Commission AFFIRMS the FAD.

The record reveals that during the relevant time, complainant was

employed as a GS-9 Construction Representative in the agency's Division

of Engineering in Hadley, Massachusetts. Complainant claims that while he

was recovering from surgery in January of 1996, his first-line Supervisor

(S1) made harassing telephone calls to his hospital room requesting

medical documentation and inquiring about his return to work. Further,

complainant claims that the agency's EEO Counselor (Counselor) in charge

of his EEO complaint against S1 leaked confidential information from his

case which complainant believes led to the reference as a troublemaker.

Believing he was a victim of discrimination, complainant sought EEO

counseling and, subsequently, filed a formal complaint on May 31, 1996.

At the conclusion of the investigation, complainant failed to make an

election for either a FAD or a hearing within the thirty (30) day time

frame mandated by 64 Fed. Reg. 37657 (1999)(to be codified at 29 C.F.R. �

1614.110), and thus the agency issued a FAD.

The FAD concluded that complainant failed to establish a prima facie case

of reprisal regarding claim 1, because he failed to present evidence

that he was subjected to any adverse employment action by his receipt

of the allegedly harassing telephone calls from S1. In addition,

the FAD found that while S1 acknowledged calling complainant while he

was hospitalized, he only inquired about complainant's health, did not

refer to any work-related matters and did not request that complainant

submit his medical records. Furthermore, the FAD found that complainant

failed to demonstrate that the telephone call from S1 was sufficiently

severe or pervasive to constitute harassment as the result of a hostile

work environment.

The FAD further found that complainant failed to establish a prima

facie case of reprisal regarding claim 2. The FAD found that while

complainant demonstrated that he participated in prior EEO activity and

management was aware of such activity, he failed to establish that he was

subjected to an adverse employment activity as a result. In so finding,

the FAD found that being called a "troublemaker" does not constitute

an adverse employment activity. The FAD noted that while complainant

stated he was called a troublemaker, he did not produce witnesses or

corroborating evidence to substantiate this claim, nor did he provide

evidence substantiating that the Counselor leaked any information from

his EEO complaint. On appeal, complainant contends that the agency

failed to consider a number of his arguments. The agency requests that

we affirm its FAD.

Based on McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and

Hochstadt v. Worcester Foundation 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), to establish a prima

facie case of reprisal discrimination, complainant must show that (1)

he engaged in prior protected activity; (2) the acting agency official(s)

was aware of the protected activity; (3) he was subsequently disadvantaged

by an adverse employment action; and, (4) there is a causal link between

the protected activity and adverse action. 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. To support a finding of unlawful retaliation, there must

be proof that the acting agency official(s) took the action at issue

because of complainant's prior protected activity and sought to deter

complainant or others. Bloomer v. Dept. of Transportation, EEOC Document

No. 03980137 (October 8, 1999); EEOC Compliance Manual on Retaliation,

No. 915.003 (May 20, 1998), p. 8-16.

After a careful review of the record, the Commission agrees with the

FAD that complainant failed to establish a prima facie case of reprisal

regarding either claim, as he did not demonstrate that he suffered an

adverse employment action. S1 and the Counselor denied the allegations

made by complainant, and we find that complainant has failed to establish

by a preponderance of the evidence that the actions of S1 or the Counselor

occurred as alleged. Moreover, the Commission finds that even assuming

the actions of S1 and the Counselor occurred as alleged by complainant,

these actions would not constitute materially adverse employment actions,

or that there was any link between these actions and complainant's

protected activity. Cook v. United States Postal Service, EEOC Appeal

No. 01964367 (April 30, 1999). We further agree with the FAD's finding

that complainant failed to demonstrate that he was subjected to conduct

which was sufficiently severe or pervasive that it resulted in an

alteration of the conditions of his employment. See Harris v. Forklift

Systems, Inc., 510 U.S. 17 (1993); EEOC Notice No. 915.002 (March 8,

1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3;

see also, Cobb v. Department of the Treasury, EEOC Request No. 05970077

(March 13, 1997). Therefore, after a careful review of the record and

arguments and evidence not specifically addressed in this decision,

we affirm the FAD.

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 ANOTHis PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hiseinafter 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 hiseinafter

referred to as 29 C.F.R. � 1614.604). The request or opposition must

also include proof of service on the othis 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 His 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 othis 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:

March 20, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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), whise applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.