01A21231
03-20-2003
James M. Banks, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
James M. Banks v. Department of the Interior
01A21231
March 20, 2003
.
James M. Banks,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A21231
Agency No. FWS-01-013R9
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., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. Complainant alleged in his complaint that he had been subjected
to unlawful discrimination on the bases of his race (African-American),
disability (Diabetes and hypertension), and age (fifty-eight years of
age at the time of the complained-of agency actions), and retaliation
for participating in protected equal employment opportunity (EEO)
activity, when:
(1) he was subjected to a hostile work environment through the following
incidents:
(a) on October 6, 2000, he was subjected to threats, derogatory
remarks/statements and harassment when his supervisor made a loud and
verbal attack toward him in the hallway and elevator in front of other
employees following a meeting with the Department of Labor; and
(b) in July, 2000, his supervisor raised his voice and shouted at him
at an office staff meeting.
(2) On September 15, 2000, his supervisor unofficially removed him from
his position of Staff Assistant, Job Corps Program, to unassigned duties
that were not commensurate with his GM-15 grade. Complainant also had
not received his new performance rating for FY 2000, his new performance
standards, or any new assignments;
(3) Since May, 2000, his supervisor treated him differently than the
other GS-15s by providing them the opportunity to serve as the Acting
Chief, Division of Diversity and Civil Rights. Also, his office space
is not comparable to other GS-15s on the staff; and
(4) On May 23, 2001, he became aware that a GS-13 employee was assigned
to serve as Acting Chief of the Division of Diversity and Civil Rights
and complainant was not given the opportunity to serve in the acting
capacity prior to the assignment.
At the conclusion of the agency's investigation into the complaint,
complainant was informed of his right to request a hearing before an
EEOC Administrative Judge or, alternatively, to receive a FAD by the
agency. Complainant requested that the agency issue a FAD.
In its FAD, the agency concluded that complainant had not been
subjected to unlawful discrimination as alleged. As for his hostile
work environment allegations, the agency found that the June 6, 2000,
incident was an isolated occurrence, and that the statements of other
employees did not support complainant's version of the alleged July,
2000 incident. As for complainant's remaining allegations, the agency
dismissed the first portion of claim (2) as untimely raised with an EEO
Counselor, and found that, even assuming complainant had established
that he was a qualified individual with a disability, he failed to show
that the agency's articulated reasons for the remaining complained-of
actions were pretext for unlawful discrimination. This appeal followed,
in which complainant challenges the agency's FAD as containing �numerous
discrepancies and inaccuracies,� and the agency requests that the
Commission affirm its FAD.
After a thorough examination of the record on appeal, the Commission
finds that the agency properly concluded that the record evidence does not
support complainant's unlawful discrimination claims. First, harassment
in the form of a hostile work environment is actionable only if the
harassment to which the complainant has been subjected was sufficiently
severe or pervasive to alter the conditions of his or her employment.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (Mar. 13,
1997). To establish a prima facie case of hostile work environment
harassment in violation of Title VII or the ADEA, complainant must
show that: (1) he belongs to a statutorily protected class; (2)
he was subjected to unwelcome conduct related to his membership in
that statutorily protected class; (3) the harassment complained of
was based on his membership in that statutorily protected class; (4)
the harassment had the purpose or effect of unreasonably interfering
with his work performance and/or creating an intimidating, hostile,
or offensive work environment; and (5) there is a basis for imputing
liability to the employer. Roberts v. Department of Transp., EEOC
Appeal No. 01970727 (Sept. 15, 2000); McCleod v. Social Security Admin.,
EEOC Appeal No. 01963810 (Aug. 5, 1999) (citing Henson v. Dundee,
682 F.2d 897 (11th Cir. 1982); see also Coles v. Department of the
Navy, EEOC Petition No. 03A10013 (July 13, 2001) (identifying age as a
statutorily protected class for purposes of hostile work environment
harassment claims). The record evidence presents no indication that
the complained-of agency actions at issue in claims (1)(a) and (b), even
if true, were either related to or based upon complainant's membership
in a statutorily protected class. Accordingly, he has not proven his
hostile work environment claim.
Second, in claim such as (2)-(4) presented by complainant, which allege
disparate treatment in violation of Title VII, the Rehabilitation Act,
and the ADEA, and where there is an absence of direct evidence of such
discrimination, the allocation of burdens and order of presentation
of proof is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-03 (1973); see also Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 142 (2000) (applying the McDonnell Douglas
analytical framework to an ADEA disparate treatment claim); Hochstadt
v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324
(D. Mass. 1976) (applying the McDonnell Douglas analytical framework
to a claim of retaliation), aff'd, 545 F.2d 222 (1st Cir. 1976);
Presley v. United States Postal Serv., EEOC Request No. 05980656
(Sept. 20, 2001) (applying the McDonnell Douglas analytical framework
to a disability claim). 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.
Kimble v. Department of the Navy, EEOC Appeal No. 01983020 (Aug. 22,
2001). Next, the agency must articulate a legitimate, nondiscriminatory
reason for its actions. Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). If the agency is successful in meeting its
burden, complainant must prove, by a preponderance of the evidence,
that the legitimate reason proffered by the agency was a pretext for
discrimination. Id. at 256. However, the ultimate burden of persuading
the trier of fact that the agency intentionally discriminated against
complainant remains at all times with complainant. Reeves, 530 U.S. at
143. Furthermore, it is well established that when a complainant
alleges disparate treatment in violation of the ADEA, �liability
depends on whether the protected trait (under the ADEA, age) actually
motivated the employer's decision.� Id. at 141 (quoting Hazen Paper
Co. v. Biggins, 507 U.S. 604, 610 (1993)). �That is, the plaintiff's
age must have actually played a role in [the employer's decisionmaking]
process and had a determinative influence on the outcome.� Id. (citation
and internal punctuation omitted) (alteration in original).
Applying this analysis to claims (2)-(4), and even assuming for the sake
of this appeal that complainant established that he was an individual
with a disability for purposes of coverage under the Rehabilitation Act,
the agency articulated legitimate, nondiscriminatory reasons for its
actions which complainant failed to prove were mere pretext for unlawful
discrimination. We further note that, as with complainant's hostile
work environment claims, the record evidence provides no indication that
any of the complained-of agency actions were in any way influenced by
an unlawful animus against complainant's race, disability status, age,
or prior EEO activity, or that these characteristics played any role
in those actions. The record also supports the agency's dismissal of a
portion of claim (2) on timeliness grounds. See generally 29 C.F.R. �
1614.105(a) (providing time frame for EEO Counselor contact).
Therefore, after a careful review of the record on appeal, including
complainant's contentions, the agency's response, and arguments and
evidence not specifically addressed in this decision, it is the decision
of the Commission to AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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).
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
March 20, 2003
Date