Gaylord R. Hensley, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionApr 19, 2000
01992896 (E.E.O.C. Apr. 19, 2000)

01992896

04-19-2000

Gaylord R. Hensley, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Gaylord R. Hensley, )

Complainant, )

)

v. )

) Appeal No. 01992896

Togo D. West, Jr., ) Agency No. 98-0078

Secretary, )

Department of Veterans Affairs, )

Agency. )

____________________________________)

DECISION

Complainant timely initiated an appeal from a final agency decision (FAD)

regarding his complaint of unlawful employment discrimination in violation

of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �

2000e et seq.<1> Complainant alleges that he was discriminated against

on the basis of sex when he was reassigned to the agency's Mental Hygiene

Clinic effective July 19, 1997. The Commission accepts the appeal in

accordance with 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29

C.F.R. � 1614.405).

The record reveals that during the relevant time, complainant was employed

as a social worker in the Home Based Primary Care (HBPC) program at the VA

Medical Center in Butler, Pennsylvania. Complainant alleged that in July

1997, two management officials, RN (his Supervisor) and RC, informed

him that a co-worker made a claim of sexual harassment against him.

The record reflects that RN and RC advised complainant to accept an

immediate transfer to the Mental Hygiene Clinic (MHC). Complainant

contended that consideration was not given to other alternatives,

and that as a result of his assignment to MHC, the HBPC program is now

comprised solely of female employees. Believing he was a victim of

discrimination, complainant sought EEO counseling and subsequently filed

a formal complaint on August 15, 1997.

Following an investigation, complainant requested a hearing before an EEOC

Administrative Judge (AJ) and later withdrew his request. On January 22,

1999, the agency issued a FAD finding no discrimination.

The agency concluded that complainant established a prima facie case of

sex discrimination, because he was reassigned while similarly situated

female employees were not. The agency also determined that RN and RC

provided a legitimate, non-discriminatory reason for the reassignment.

According to RC, an MHC employee wanted to move out of the unit

due to health concerns. Looking for an employee from HBPC to change

units with the MHC employee, RC and RN determined that complainant's

experience and training made him one of the most qualified people for

the reassignment. In addition to complainant's qualifications, RN noted

that the reassignment would alleviate the conflict created by the sexual

harassment claim. The agency found that complainant failed to present

any persuasive evidence showing that discriminatory motives were involved

with the agency's decision. Further, the agency noted that although RN

and RC considered the sexual harassment claim in deciding to reassign

complainant, there was no evidence that complainant's alternatives

would have met the needs of the complaining employee and the unit as

effectively. Accordingly, the FAD stated that complainant failed to

prove discrimination on the basis of sex.

On appeal, complainant contends that, contrary to the statements made by

RN and RC, there was no other male social worker in HBPC and therefore

his reassignment resulted in the HBPC unit, where he had been previously

assigned, being comprised exclusively of female employees. Complainant

also contends that RC and RN provided conflicting information, thereby

further reflecting the discriminatory nature of the reassignment.

In response, the agency reiterates that management provided legitimate

non-discriminatory reasons for the reassignment. Specifically, the

agency states that complainant was the most qualified social worker

available to fill the vacancy and that a female co-worker in HBPC made

a sexual harassment complaint against him.

Generally, discrimination claims are examined under the three-part

analysis first enunciated in McDonnell Douglas Corporation v. Green, 411

U.S. 792 (1973). For complainant to prevail, he must first establish

a prima facie case of discrimination by presenting facts that, if

unexplained, reasonably give rise to an inference of discrimination,

i.e., that a prohibited consideration was a factor in the adverse

employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco

Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to

the agency to articulate a legitimate, nondiscriminatory reason for its

actions. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248,

253 (1981). Once the agency has met its burden, the complainant bears the

ultimate responsibility to persuade the fact finder by a preponderance of

the evidence that the agency acted on the basis of a prohibited reason.

See St. Mary's Honor Cen. v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the

first step normally consists of determining the existence of a prima

facie case, need not be followed in all cases. Where the agency has

articulated a legitimate, non-discriminatory reason for the personnel

action at issue, the factual inquiry can proceed directly to the third

step of the McDonnell Douglas analysis, the ultimate issue of whether

complainant has shown by a preponderance of the evidence that the

agency's actions were motivated by discrimination. See United States

Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);

Hernandez v. Department of Transportation, EEOC Request No. 05900159

(June 28, 1990); Peterson v. Department of Health and Human Services,

EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of

the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Here, we find that the record supports the legitimate, non-discriminatory

reasons presented by the agency. We note that the agency determined

that based on their experience, complainant and another male employee were

considered for the reassignment to MHC. The record contains the statement

of RN that, because of complainant's prior mental health experience in the

private sector, he was well qualified for the MHC position. According

to RN and RC, the other HBPC employees, who are female employees, did

not have as much experience as complainant and the other male employee

who was reassigned. In addition, RN and RC considered complainant's

qualifications and concluded that reassigning complainant would also

alleviate the problems created by the sexual harassment claim.

Complainant failed to present evidence that, more likely than not,

the agency's articulated reasons for its actions were a pretext for

discrimination. In reaching this conclusion, we note complainant's

argument that other alternatives to the sexual harassment allegations

were not considered. However, management offered legitimate reasons

for choosing reassignment and they were not required to consider other

alternatives. Moreover, testimony from the Nurse Manager of HBPC reflects

that one of complainant's proposed alternatives (working at a distance),

was possible but not ideal. We are not persuaded that complainant's

reassignment was motivated by his sex, rather than the need to fill a

position with a qualified employee; and to separate co-workers involved

in a claim of sexual harassment. Therefore, we agree with the agency

that complainant failed to establish, by a preponderance of the evidence,

that he was discriminated against on the basis of sex.

Accordingly, based on the entire record, including arguments and evidence

not specifically discussed herein, we AFFIRM the agency's 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 ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64

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

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

April 19, 2000

__________ ______________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date 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), where

applicable, in deciding the present appeal. The regulations, as amended,

may also be found at the Commission's website at www.eeoc.gov.