01973042
12-02-1999
Jasper B. Dodson, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Jasper B. Dodson, )
Complainant, )
) Appeal No. 01973042
v. ) Agency No. 9602G0030
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
Complainant filed a timely appeal with this Commission 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, as amended, 42 U.S.C. � 2000e et seq.<1> Complainant claims that
he was retaliated against for engaging in prior EEO activity and also
subjected to harassment based on reprisal. We accept the appeal in
accordance with EEOC Order No. 960.001. For the reasons that follow,
the Commission affirms the FAD as clarified herein.
The record reveals that during the relevant time, complainant was
employed as a GS-9 Realty Specialist at the agency's Memphis District
Corps of Engineers' Real Estate Division. In support of his claim
of discrimination, complainant identifies the following incidents:
(1) he was rated unfairly low on his annual performance appraisal for
the period of October 1, 1994, to October 31, 1995; (2) a memorandum
extending his 1994 annual performance appraisal period was placed in
his official personnel file (OPF) and the appraisal itself was annotated
as �special� instead of �annual;� and (3) his immediate supervisor (S)
harassed him by issuing a written memorandum concerning the procedure
he used to request leave in December 1995. At the conclusion of the
complaint investigation, complainant requested a FAD, which was issued
by the agency on February 5, 1997, finding no discrimination. On appeal,
complainant asks that his personnel file be reviewed, contending that he
did not receive adequate training to perform his job. Complainant also
claims that his working conditions caused the cerebral hemorrhage he
suffered in 1989, and demands that the agency reimburse him for medical
expenses.<2> The agency requests that we affirm its FAD.
Based on the standards set forth in McDonnell Douglas v. Green, 411
U.S. 792 (1973), and Hochstadt v. Worcester 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), the
agency found that even if complainant had established a prima facie
case of reprisal, he failed to present sufficient credible evidence
that management's explanations for its actions were a pretext to mask
unlawful retaliation. We agree with the agency's conclusion.
Specifically, regarding the first incident, S testified that complainant
received only a �Successful 3" appraisal because he had many errors in
his work, had a negative attitude, and refused to accept supervision
from S. This account was verified by complainant's second and third
line supervisors, who also stated that complainant was loud and rude
to S, and that his hostile demeanor toward S adversely affected his
work performance. We note also that complainant received an official
reprimand during this rating period concerning an unacceptable number of
errors in his work. Complainant claims his performance was far better
than his co-workers who received higher evaluations and performance
awards, but that S was not intelligent enough to understand this.
In the alternative, on appeal, he also argues that he did not have
adequate training to perform the job well. Not only do these statements
contradict each other, but we find that the evidence fully corroborates
S's testimony, whereas complainant presents no evidence in support
of either of his contentions in this matter.<3> We note further that
witness testimony consistently confirms that S made many attempts to
help complainant improve his performance, including re-writing his job
elements and correcting his work for him.
Regarding the second incident, the record discloses that complainant
discovered the memorandum at issue in his OPF when investigating the first
incident. According to the testimony of S and the personnel specialist,
the memorandum benefitted complainant who would have otherwise received
an unsatisfactory performance appraisal had the period not been extended
to allow him to make up deficiencies in two elements. S admitted that
he should have given complainant a copy, but that if he did not, it
was merely an oversight, and not reprisal. Concerning the �annual�
versus �special� annotation on the appraisal, the record convincing
shows that it was simply confusion on S's part which box to check,
and that the personnel specialist corrected the mistake when the error
was discovered. The personnel specialist also indicated that this type
of error was common. Complainant presented no evidence to suggest that
any of these actions were motivated by reprisal.
We note that the complainant offers the third incident as evidence that
he was subjected to harassment based on reprisal. He avers that he was
subjected to a hostile work environment with respect to submitting leave
requests.<4> The FAD did not address the issue of harassment in this
context, and so we clarify the FAD to include our finding on this issue.
Based on the standards set forth in Harris v. Forklift Systems, Inc.,
510 U.S. 17 (1993), in order to prevail on a claim of harassment,
complainant must prove that (1) he was subjected to harassment that was
sufficiently severe or pervasive as to alter the terms or conditions
of employment and create an abusive or hostile environment; and (2) the
harassment was based on his membership in a protected class. See EEOC
Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris
v. Forklift Systems, Inc. at 3, 6; Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997).
Upon review, we conclude that the single incident raised by complainant
was neither sufficiently severe nor pervasive to create an objectively
hostile or abusive work environment. We find that the memorandum
issued by S has a neutral tone, merely informing complainant about
the confusion and inconvenience caused by his failure to even inform S
that he would not be at work on the days in question, with a follow-up
paragraph asking that complainant observe the proper procedures when
requesting leave. The record is clear that complainant violated agency
policy when he submitted his leave slip to the timekeeper and took the
leave without prior approval from S. We find that given that S could
have formally disciplined complainant for this infraction, but did not,
defeats complainant's claim that the memorandum was issued as harassment
in retaliation for his prior EEO activity.
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 FAD as
clarified.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
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 the 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 the 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 the 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:
December 2, 1999
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:
_________________________
__________________________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.
2This matter is being raised for the first time on appeal. Accordingly,
it is not properly before us, and will not be considered herein.
3We note that it is the complainant's burden to obtain and submit evidence
in support of his contentions, and asking this Commission to obtain and
review his OPF is inappropriate.
4In his statements, complainant only claims harassment with respect
to use of leave, and does not include any other incidents to support
his claim. We will conduct our review accordingly. However, even taking
into consideration the other incidents of reprisal claimed by complainant,
we find that taken all together, these were common workplace occurrences
which were not so severe or offensive so as to constitute harassment.
Wolf v. U.S. Postal Service, EEOC Appeal No. 01961559 (July 24, 1998)