01976483
10-15-1999
Jean Robert Jean, Appellant, v. Carol M. Browner, Administrator, Environmental Protection Agency, Agency.
Jean Robert Jean v. Environmental Protection Agency
01976483
October 15, 1999
Jean Robert Jean, )
Appellant, )
)
v. ) Appeal No. 01976483
) Agency No. 95-0062-R2
Carol M. Browner, )
Administrator, )
Environmental Protection Agency, )
Agency. )
)
DECISION
On August 27, 1997, Jean Robert Jean (hereinafter referred to as
appellant) filed a timely appeal from the August 4, 1997, final decision
of the Environmental Protection Agency (hereinafter referred to as the
agency) 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., and the Age Discrimination in Employment Act
of 1967, as amended, 29 U.S.C. �621 et seq. The appeal is timely filed
(see 29 C.F.R. �1614.402(a)) and is accepted in accordance with EEOC
Order No. 960, as amended. For the reasons that follow, the agency's
decision is AFFIRMED.
The issue presented in this appeal is whether the appellant has proven,
by a preponderance of the evidence, that the agency discriminated against
him on the bases of race/color (black), sex, national origin (Haitian),
age (DOB 6-24-51), and religion (Catholic) when he was issued a letter
of reprimand on March 20, 1995.
Appellant filed his formal complaint on June 27, 1995. Following an
investigation, he was advised of his right to request a hearing before
an EEOC Administrative Judge or an immediate final agency decision
(FAD), and he requested a FAD. The agency issued its FAD, finding no
discrimination.
Appellant worked as an Environmental Engineer, GS-12, Air/Waste
Management Division, Region 2. On March 20, 1995, his supervisor (S1)
issued a letter of reprimand to him concerning his conduct towards E1,
a secretary (black female). In 1994, E1 had complained that appellant
sexually harassed her, and appellant was directed to avoid all contact
with E1. In January 1995, appellant approached E1 and informed her
that she had missed some belt loops and her underwear was visible.
Appellant admitted this communication with E1 and stated that he was
trying to be helpful.<1>
In his complaint, appellant alleged that employees of other races would
be treated differently under similar circumstances, although he conceded
that he had no proof. The record shows that, for the two year period
previous to March 1995, S1 issued one reprimand to a black employee for
lack of cooperation and making false statements. In his appeal statement,
appellant argued that S1 improperly issued the reprimand to him.
Generally, discrimination claims are examined under the tripartite
analysis first enunciated in McDonnell Douglas Corporation v. Green,
411 U.S. 792 (1973). See Loeb v. Textron, Inc., 600 F.2d 1003 (1st
Cir. 1979). Appellant must first 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; Furnco Construction Corp. v. Waters, 438
U.S. 567 (1978). The agency offers a rebuttal to appellant's inference
of discrimination by articulating a legitimate, nondiscriminatory reason
for its action(s). Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981); see U.S. Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 715-716 (1983). Once the agency has met its
burden, the complainant bears the ultimate burden to persuade the fact
finder by a preponderance of the evidence that the reasons offered by
the agency were not the true reasons for its actions but rather were
a pretext for discrimination. St. Mary's Honor Center v. Hicks, 509
U.S. 502 (1993). Under the ADEA, the appellant must show that his age was
a determining factor in the agency's decision, that is, considerations of
age made a difference in the agency's selection decision. Hazen Paper
Company v. Biggins, 507 U.S. 604, 610 (1993) (age had "a role in the
process and a determinative influence on the outcome").
The agency explained that it followed proper procedures in issuing
the reprimand to appellant, that he had been previously directed to
avoid interaction with E1, and that his actions in January 1995 were
inappropriate. We find that the agency has articulated legitimate,
nondiscriminatory reasons for its actions. In response, appellant failed
to demonstrate, nor does the record show, that the agency's reasons
for its actions were pretextual or based on prohibited considerations.
Appellant continues to dispute minor facts and the validity of the
reprimand but does not address whether he was treated differently than
similarly situated employees.
CONCLUSION
Accordingly, the agency's decision 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. �l6l4.604(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:
Oct. 15, 1999
DATE Carlton Hadden, Acting Director
1Following agency procedure, the reprimand was expunged from appellant's
records in March 1997.