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.