01A14866
09-26-2002
Irvin H. Stevenson, Complainant, v. Christine Todd Whitman, Administrator, Environmental Protection Agency, Agency.
Irvin H. Stevenson v. Environmental Protection Agency
01A14866
September 26, 2002
.
Irvin H. Stevenson,
Complainant,
v.
Christine Todd Whitman,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 01A14866
Agency No. 2000-0083-HQ
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
AFFIRMS the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a GS-201-13, Personnel Management Specialist in the
agency's Office of Human Resources and Organizational Services (OHROS)
Division in Washington, D.C. The record reflects that on November 3,
1999, complainant agreed to serve as the agency's representative and
recruiter for the Workforce Recruitment Program for College Students
for the President's Committee on Employment of People with Disabilities
(PCEPD). Complainant represented the agency in the same capacity the
year prior. As the agency's representative, complainant was required
to take four recruiting trips and visit four (4) different colleges
and/or universities. Complainant was instructed to interview students
with disabilities who were potential candidates for recruitment for
federal employment. At the conclusion of each interview, complainant
would input the data into a laptop computer which would become part of
a larger database maintained by PCEPD to be made available to federal
agencies throughout the country. After completion of all the required
interviews, complainant was required to return the data disk to the
agency's Executive Director (ED1) of PCEPD by February 28, 2000.
On January 24, 2000, the agency faxed complainant a reminder of
the deadline for submission of the data. The record reflects that
complainant conducted interviews in Georgia on January 24 - 30, 2000.
Upon complainant's return to Washington, D.C., he advised the appropriate
personnel that the laptop computer did not function properly. Agency
personnel attempted to install new software. On February 2, 2000,
complainant was faxed another reminder from ED1 regarding his data disk
and materials. On February 17, 2000, complainant conducted additional
interviews in Maryland.
The record establishes that complainant asked for, and received,
compensatory time to complete the assignment. In addition, complainant's
immediate supervisor (S1: Caucasian, white, no known EEO activity)
reminded complainant that ED1 had 8 loaner laptop computers that
were operational if he needed to replace the one that he was using.
On February 28, 2000, complainant sent S1 an email and informed her
that he come in to the office prepared to complete the assignment but,
the laptop with the appropriate software had not been left for him
as he had arranged. Consequently, complainant failed to complete the
assignment on time.
On May 4, 2000, the agency sent complainant an inter-office memorandum
informing him that he would be suspended for 10 days effective May 10,
2000. The memo stated that complainant's suspension was based on careless
workmanship, which negatively impacted the students interviewed, as
well as the reputation of the agency. On May 8, 2000, complainant filed
a grievance. On June 29, 2000, the agency denied complainant's grievance.
On June 6, 2000, complainant sought EEO counseling. Subsequently,
complainant filed a formal complaint on August 11, 2000, alleging that he
was discriminated against on the bases of race (African-American), color
(black), and reprisal for prior EEO activity when on March 17, 2000,
he received a Notice of Suspension for 10 calendar days. On July 25,
2000, an agency official (S2: Caucasian, white, no known EEO activity)
assigned complainant the task of making travel arrangements for the
external attendees of a consultation meeting being planned. Complainant
then amended his complaint on October 18, 2000, alleging that he was
discriminated against on the basis of reprisal for prior EEO activity
when S2 assigned him the above task which was generally performed by
secretarial or support staff.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. The record is
unclear whether complainant requested that the agency issue an immediate
final decision or, if complainant failed to respond within the 30 day
time frame of selecting a hearing before an EEOC Administrative Judge
or an immediate final agency decision.
In its FAD dated July 10, 2001, the agency assumed, without deciding,
that complainant established a prima facie case of race and/or color
discrimination. The FAD also concluded that the agency articulated
legitimate, nondiscriminatory reasons for its actions. The agency
further found that complainant failed to show that the agency's reasons
for suspending him were a pretext for discriminatory animus. The record
also reflects that the agency concluded that complainant failed to
establish a prima facie case of reprisal discrimination.
On appeal, complainant contends that the agency incorrectly relied on
incorrect or irrelevant facts in the record which led to an erroneous
analysis of the issues in the complaint. Complainant also contends
that the agency erred in finding that there was no showing of pretext.
Complainant further contends that the agency erred in finding that
there was no showing of a prima facie case of reprisal discrimination.
The agency requests that we affirm its FAD.
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),
aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to
retaliation cases). First, complainant must 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.
McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination. Id. at 256.
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case
of reprisal by showing that: (1) he engaged in a protected activity;
(2) the agency was aware of his protected activity; (3) subsequently,
he was subjected to adverse treatment by the agency; and (4) a nexus
exists between the protected activity and the adverse treatment.
With regard to reprisal discrimination, the Commission has stated that:
The anti-reprisal provision of Title VII protects those who participate
in the EEO process and also those who oppose discriminatory employment
practices. Participation occurs when an employee has made a charge,
testified, assisted, or participated in any manner in an investigation,
proceeding or hearing. Participation also occurs when an employee files
a labor grievance, if the employee raised issues of unlawful employment
discrimination in the grievance. . . . A variety of activities has been
found to constitute opposition . . . . Because the enforcement of Title
VII depends on the willingness of employees to oppose unlawful employment
practices or policies, courts have interpreted section 704(a) of Title
VII as intending to provide �exceptionally broad protection to those
who oppose such practices'. . . ."
Whipple v. Department of Veterans Affairs, EEOC Appeal No. 05910784
(February 21, 1992) (citations omitted).
Complainant claims that agency management suspended him because of his
race, color and/or prior protected activity. We find no basis in the
record evidence to support these claims. Although complainant suggests
that individuals similarly situated, outside of his protected classes,
were treated more favorably, we find no such evidence in the record.
Complainant provides several instances where agency employees caused
embarrassment to the agency but were not disciplined as harshly.
The first cited employee was the agency Administrator that was required
to testify before Congress regarding employment practices at the agency.
The second cited employee was the agency's contracting officer who
was �zinged� by Congress for mismanaging contracts. The final cited
employee (Caucasian, white, no known EEO activity) went to a national
meeting to negotiate on behalf of the agency but she had prepared the
wrong plan. According to complainant, all three situations damaged the
agency's reputation but none of these individuals were suspended for 10
days. Complainant contends that this makes his suspension discriminatory.
We disagree.
The three situations presented by complainant are not comparable to the
incidents which led to his suspension. In addition, there is no evidence
that any of the cited employees held similar jobs or even had the same
supervisor as complainant. The record evidence shows that the agency
assigned complainant the task because he had successfully completed it the
year before. Complainant's failure to timely complete the project, which
was a highly visible initiative promoted by the White House, resulted
in ED1's statement that he was debating whether to inform the agency's
Administrator about his anger and disappointment at the agency's inability
to produce the information that he needed to include in his report.
The record reflects that, in return for ED1's agreement not to notify the
Administrator, the agency would write letters of apology to the college
presidents where complainant interviewed students and the PCEPD; and that
the agency would hire as many students with disabilities as possible.
The record also reflects that this was the first time in the 24-year
history of PCEPD that a federal agency recruiter had failed to produce
the data as promised. As a result, 22 students missed the opportunity
to be considered for a job in the federal government through this program.
Under these circumstances, we find that complainant failed to establish a
prima facie case of race, and/or color discrimination. In particular,
complainant failed to present evidence that individuals, similarly
situated and outside of his protected classes were treated more favorably
under similar circumstances. We also find, that even assuming, arguendo,
that complainant established a prima facie case of discrimination, the
agency articulated legitimate, nondiscriminatory reasons for its actions.
Complainant asserts that the agency's reasons are pretextual because
S1 was concerned that had ED1 notified the agency's Administrator
about the incident there would have been serious ramifications for
her senior leadership and her reputation. Even if S1 was overly
concerned with how the missed deadline would affect her career, that
does not show that complainant's suspension was based on discriminatory
animus. Consequently, the Commission finds that complainant failed to
present sufficient evidence to show that he was in fact subjected to
discrimination on race and/or color.
The Commission also finds that complainant failed to establish a prima
facie case of retaliation with respect to the suspension. It is
uncontroverted that complainant engaged in protected activity and,
within two months, the agency suspended him for ten days. However,
complainant failed to establish that relevant management officials
were aware of his protected activity. In point of fact, complainant
agrees that S1was not aware of his participation in protection activity.
While complainant contends that the individual responsible for approving
the suspension, the acting Human Resources Director (S3), did have
knowledge of complainant's prior protected activity, we are not persuaded
that the record evidence supports complainant's assertion.
In regard to the second claim of reprisal, the Commission again finds
that complainant failed to establish a prima facie case. In particular,
complainant failed to show that he suffered adverse employment treatment.
Complainant contends that the agency assigned him the task of coordinating
travel for external participants for the agency's National Hispanic
Stakeholder's Consultation Meeting. This task, complainant contends,
is generally performed by a secretary or support staff. However,
the record evidence establishes that the same task that was assigned
to complainant had been performed by a White, female employee who was
a GS-14. The record also shows that the majority of the assignment was
performed by complainant's co-worker who is a GS-15.
Based on the foregoing, the Commission finds that complainant failed to
present evidence that any of the agency's actions were in retaliation
for complainant's prior EEO activity or were motivated by discriminatory
animus toward complainant's race and/or color. Therefore, after a careful
review of the record, including complainant's contentions on appeal,
the agency's response, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the agency's final decision.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 26, 2002
__________________
Date