01975553
09-27-2000
Eric A. Shrader, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Eric A. Shrader v. Department of Agriculture
01975553
September 27, 2000
.
Eric A. Shrader,
Complainant,
v.
Daniel R. Glickman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01975553
Agency No. 94-0112, 94-0222, 94-0616
Hearing No. 100-96-7051X, 100-96-7052X, 100-96-7053X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of race (Caucasian), reprisal
(prior EEO activity<1>), and physical disability (allergy to smoke),
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. and the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791, et seq.<2> Complainant alleges he was discriminated
against when: (1) he was re-assigned effective November 22, 1993, from
the position of Director, EEO and Civil Rights Staff (case no. 94-0112);
(2) in January and February 1994, he was given EEO and civil rights
related assignments which he previously assigned to subordinates
(case no. 94-0222); and (3) on March 7, 1994, he was detailed to
the Modernization of Administration Process Program (MAP) (case
no. 94-0616). The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission AFFIRMS the agency's
final decision.
BACKGROUND
In April 1992, complainant (White, male) was hired as the Director,
EEO and Civil Rights Staff (EEO/CR) GS-15, at the agency's Agricultural
Stabilization and Conservation Service (ASCS). The record reveals that
complainant instituted several changes in the programs and policies
implemented by EEO/CR<3> and issued disciplinary action against various
EEO/CR staff.
On October 4, 1992, complainant met with the Acting Administrator (MO1)
(Caucasian/male)who told him that the new administration did not want
him as Director, EEO/CR because of concerns about his leadership.
On October 6, 1993, the Administrator-Designate (MO2) (Caucasian/male)
told complainant that he would be reassigned within two to eight weeks
because he was controversial. MO2 averred that he decided to reassign
complainant based on recommendations and reports he received regarding
complainant's poor management and communication skills.<4> He noted in
particular reports he received regarding Prevention of Sexual Harassment
training held by complainant, and reports of complainant's defensive
response to the complaints he received about the training.<5>
On November 22, 1993, complainant was reassigned to the position of
Assistant to MO3. On January 4, 1994, MO3 gave complainant a list of
work assignments (Assignments) which complainant previously assigned to
his subordinates in EEO/CR. MO3 indicated that the Assignments came
from MO4 and were assigned because they were within complainant's area
of expertise.
Complainant claimed it was punitive and an act of reprisal to assign
these tasks to him since he previously assigned the work to lower grade
subordinates in EEO/CR who he disciplined because of performance problems.
He stated that it was demeaning for these employees to develop, prepare
and discuss his assignments. He also stated that he wished to work
somewhere other than ASCS.
In February, MO3 instructed complainant to meet with the Director of MAP
to explore the possibility of working there.<6> Complainant reported
back to MO3 that MAP was not career enhancing. On February 11, 1994,
complainant requested an accommodation for his allergy to cigarette
smoke because his new office was located next to those of employees who
smoked.<7> Complainant was moved shortly after to another site away
from cigarette smoke.
On March 7, 1994, MO3 withdrew the Assignments per instructions from MO1
but detailed complainant to MAP. Complainant claimed that the detail,
wherein he reported to a GS-14 supervisor, created a hostile work
environment and subjected him to ridicule in the agency. MO3 averred
that he detailed complainant to MAP because complainant was not happy
with the Assignments and because there was no other position available.
He stated that the detail to MAP was the only alternative, and averred
that he believed complainant could assist there because he had good
analytical and writing skills.
Following a hearing before an EEOC Administrative Judge (AJ), the AJ
issued a Recommended Decision (RD) finding no discrimination. The AJ
concluded that complainant established a prima facie case of reprisal
because he engaged in protected activity, the responsible officials
were aware of the activity, and subsequently took adverse action
against him. The AJ found that complainant established a prima facie
case of discrimination based on race, but failed to establish a prima
facie case of discrimination based on disability because he presented
no evidence that his allergy to cigarette smoke rose to the level of a
disability, or that the responsible officials knew he was allergic to
smoke, or regarded him as disabled.
The AJ then concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Regarding the reassignment,
the AJ found it unlikely that the MO1, MO2, or MO3 discriminated against
complainant on the basis of race. The AJ found that, although MO4
tried to take credit for complainant's reassignment at the hearing, his
testimony lacked even basic credibility. Further, the AJ found he was not
in the chain of authority over EEO/CR at the time of the reassignment.
Although MO4 averred that he recommended reassigning complainant, the
AJ noted that MO2 testified that MO4, a designee at that time, was not
involved in the reassignment decision.
The AJ found that complainant did not establish that, more likely
than not, the agency's articulated reasons were a pretext to mask
unlawful discrimination. In reaching this conclusion, the AJ found that
complainant failed to rebut the agency's concerns about his management
and leadership skills, and failed to show that the Assignments were
retaliatory or rebut the agency's statement that complainant was well
qualified to take the assignments. The AJ further found complainant
failed to show that MO3 acted for a discriminatory or retaliatory purpose
when he detailed complainant to MAP after complainant stated he wanted
to work somewhere other than ASCS.
The agency's final decision (FAD) implemented the AJ's RD. On appeal,
complainant contends that the AJ's RD is not supported by the weight
of the evidence and testimony. He argues that the length of the
decision did not thoroughly consider all of the relevant evidence and
testimony included in the 1645 pages of testimony and over 300 exhibits.
Complainant also argues that the agency's decision is fatally flawed
because it fails to acknowledge direct evidence of discriminatory intent
and instead, applies the inappropriate standard for cases involving
indirect evidence. Finally, complainant argues that MO4 did not have
to be in the direct chain of command to exert influence over officials
who took adverse action against him.
Complainant then submitted a motion to amend the appeal based on
new information. He presents a preemptive argument that his appeal
is timely based on the fact that the agency first sent the FAD to his
former counsel, and that he did not receive the agency's decision until
several months after it was issued. Complainant also argues that the
agency submitted as an exhibit in the instant complaints, a memorandum,
dated June 10, 1993, which was expunged from his record in a settlement
agreement. Complainant requests that the memorandum not be referenced,
utilized, or considered in his appeal.<8>
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a) all post-hearing factual findings
by an Administrative Judge will be upheld if supported by substantial
evidence in the record. Substantial evidence is defined as �such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.� Universal Camera Corp. v. National
Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted).
A finding that discriminatory intent did not exist is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We therefore discern no basis to
disturb the AJ's RD. After a careful review of the record, including
complainant's contentions on appeal, the agency's response, and arguments
and evidence not specifically in this decision, we AFFIRM the agency's
final action.
CONCLUSION
Accordingly, the decision of the agency is proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
September 27, 2000
__________________
Date
1 Complainant claims reprisal as a basis for discrimination based on his
May 17, 1993 EEO counselor contact regarding his performance rating and
on the claim that his supervisor failed to support the EEO activities
and programs he implemented as Director of EEO/CR.
2 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. The regulations, as amended, may also be found
at the Commission's website at www.eeoc.gov.
3Former ASCS officials averred that complainant inherited long-standing
performance and conduct problems in the EEO/CR staff and met considerable
opposition in implementing changes.
4 The Acting Deputy Administrator Management (MO3) (Caucasian/male)
and Deputy Administrator Management-Designee (MO4 (Black/male) averred
that they recommended reassigning complainant because his management
style was disruptive to his staff and the EEO programs at the agency.
An EEO/CR employee averred that in September 1993, she and complainant
met with MO4 and that complainant asked MO4 not to smoke because of his
allergy to smoke. She stated that MO4 told them that a non-white should
be the Director of EEO/CT, and that a Black subordinate in EEO/CR should
have been selected as its Director. The Director, Financial Management
Division (race unknown, female) averred that she heard MO4 make racist
remarks about Caucasians, referring to Caucasians as �rednecks.�
5 On August 31, 1993, complainant held a session during which he used
anatomically correct terms to refer to certain body parts. The record
indicates a mixed reaction among attendees. MO3 canceled the second day
of the training and notified complainant that some attendees objected
to his use of the anatomical terms. Complainant responded verbally and
in a memorandum that he would no longer use the terms.
6 MAP was a task force addressing automation processes, attempting to
modernize the systems and develop commonality with other agencies..
7 Complainant testified that when he was hired he completed two agency
forms regarding disabilities and identified his respiratory problem with
breathing smoke.
8The agency did not argue that the appeal was untimely and the June 10,
1993 memorandum was not considered in this appeal.