01970205
10-01-1999
George White, Appellant, F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency
George White, )
Appellant, )
) Appeal No. 01970205
) Agency No. AR000960563
)
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency )
)
DECISION
INTRODUCTION
Appellant timely filed an appeal with the Equal Employment Opportunity
Commission (Commission) from a final agency decision concerning 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.
Accordingly, the appeal is accepted in accordance with EEOC Order
No. 960.001.
ISSUE PRESENTED
The issue on appeal is whether the agency properly found no
discrimination.
BACKGROUND
Appellant, a laborer at the Lodging Office at Tyndall Air Force Base,
filed a formal complaint alleging discrimination on the basis of race
(Afro-American), color (Black), sex (male), and reprisal (prior EEO
activity and participation in discrimination complaints as a union
representative<1>) when, in February 1995, his work schedule was reduced
from 40 to 35 hours per week yet two custodial inspectors were hired;
in August 1995, his work assignment was rotated to a different building;
and he did not receive a performance award in September 1995.
At a Fact Finding Conference (FFC), appellant's managers testified that
in February 1995, work hours were reduced from 40 to 35 hours per week for
all regular lodging employees due to a lack of funds and a reorganization
of the command. The managers stated that custodial inspectors were hired
at the direction of the Services Commander following complaints about
the quality of the lodgings. A manager testified that he began rotating
employees to different buildings so that all staff could become familiar
with each building. The manager stated he rotated appellant to a certain
building because the building had not been cleaned as well lately,
he wanted employees to become trained in maintaining all buildings,
and because the building had low visibility and could enable appellant
to attend union meetings without being missed;
The manager testified that he gave performance awards to employees
performing over and above the norm. The manager stated that while
appellant was ranked as very good, he was not above the norm. The manager
testified that five employees, two Black males, two Caucasian males and
one Asian male, received awards for the relevant time period.
In its final decision the agency stated that appellant stated a prima
facie case for retaliation, however, it found appellant failed to
demonstrate that the reasons the agency articulated for its actions were
a pretext for discrimination.
On appeal, appellant states that the investigator refused to allow
appellant's witnesses to testify and refused to acquire and enter Base
financial records into the record.<2>
ANALYSIS AND FINDINGS
Appellant's claims of disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). In general, for appellant 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. McDonnell Douglas, 411 U.S. at 802.
The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency is
successful, the burden reverts back to the appellant to demonstrate by a
preponderance of the evidence that the agency's reasons were a pretext for
discrimination. At all times, appellant retains the burden of persuasion
and it is his obligation to show by a preponderance of the evidence
that the agency acted on the basis of a prohibited reason. U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).
Although the initial inquiry in a discrimination case usually focuses
on whether the complainant has established a prima facie case,
following this order of analysis is unnecessary when the agency has
articulated a legitimate, nondiscriminatory reason for its actions. See
Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31,
1990). In such cases, the inquiry shifts from whether the complainant
has established a prima facie case to whether he has demonstrated by a
preponderance of the evidence that the agency's reason for its actions
was a pretext for discrimination. Id.; see also United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 714-17 (1983).
After reviewing the record, the Commission finds that appellant failed to
demonstrate that the reasons articulated by the agency were a pretext for
discrimination. The agency explained that all employees in appellant's
work group were equally situated regarding the reduction in hours and
building rotation. The agency also explained the manager's rationale
for not awarding appellant a performance award.
In order to establish a prima facie case of discrimination for an
allegation of reprisal, appellant must show: 1) that he engaged in
protected activity, e.g., participated in a Title VII proceeding; 2)
that the alleged discriminating official was aware of the protected
activity; 3) that he was disadvantaged by an action of the agency
contemporaneously with or subsequent to such participation; and 4)
that there is a causal connection between the protected activity and
the adverse employment action. Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass), affirmed,
545 F. 2d 222 (1st Cir. 1976); see also Mitchell v. Baldridge, 759 F. 2d
80, 86 (D.C. Cir. 1985); Burrus v. United telephone Co. of Kansas, Inc.,
683 F.2d 339, 343 (10th Cir. 1982), cert. denied, 459 U.S. 1071 (1982).
The record indicates that appellant engaged in protected activity when
he participated in union activities involving discrimination issues,
and that the agency was aware of that activity. Four months lapsed
between appellant's most recent protected activity and when his work
hours were reduced. Close proximity in time establishes a nexus
between the protected activity and the adverse action, however, the
agency articulated legitimate, nondiscriminatory reasons for its actions;
i.e. that hours were reduced for all Laborers at the Lodging Office due
to financial constraints. Appellant failed to prove that this reason
was a pretext for discrimination.
Appellant was rotated and not given a performance award almost a
year after his protected activity. Due to the length of time between
these actions, we find that appellant fails to show a nexus between his
protected activity and the agency's actions, and therefore fails to show
that the agency's actions were in reprisal for his protected activity.
The agency's determination that appellant failed to establish that
the agency retaliated against him or that its actions were based on
discriminatory animus was correct. Accordingly, the decision of the
agency was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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
October 1, 1999
________________________ _______________________
DATE Carlton Hadden, Acting Director
Office of Federal Operations
1 At the Fact Finding Conference appellant testified that he represented
five or six co-workers in EEO matters. The most recent was in October
1994.
2 The agency stipulated to appellant's witnesses' proposed testimony.