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.