Eric A. Shrader, Complainant,v.Daniel R. Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionSep 27, 2000
01975553 (E.E.O.C. Sep. 27, 2000)

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.