George White, Appellant, F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency

Equal Employment Opportunity CommissionOct 1, 1999
01970205 (E.E.O.C. Oct. 1, 1999)

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.