01975070
01-06-2000
Joseph P. Paul, Complainant, v. David J. Barram, Administrator, General Services Administration (Federal Protective Service), Agency.
Joseph P. Paul v. General Services Administration
01975070
January 6, 2000
Joseph P. Paul, )
Complainant, )
) Appeal No. 01975070
v. ) Agency No. 95-R5-5PS-1D-JPP-14
)
David J. Barram, )
Administrator, )
General Services Administration )
(Federal Protective Service), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
basis of reprisal (prior EEO activity) in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1>
Complainant alleges he was discriminated against and harassed when:
(1) his annual performance appraisals for the periods ending February
1993 and 1995 were rated "highly successful" instead of "outstanding";
(2) on April 21, 1995, the District Director allegedly threatened him
with physical harm; and (3) between August 31 and September 8, 1995,
he was challenged about his annual leave and a report he prepared.
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED.
The record reveals that during the relevant time, complainant was employed
as a Physical Security Specialist, GS-11, at the agency's Public Building
Services, Chicago, Illinois. In October 1992, an ad hoc committee was
established to conduct an "organizational climate assessment" in response
to complaints from minorities about treatment they received from the
Branch Chief. Complainant alleged that after he provided a statement
regarding racially derogatory statements made by the Branch Chief, he
suffered reprisal in the form of harassment when the Branch Chief rated
him "highly successful" for the rating periods ending 1993 and 1995.
The record reveals that In 1990, 1991, and 1992, the Branch Chief rated
complainant "outstanding".
Complainant also alleged that on April 21, 1995, the District Director
threatened him with physical harm when he asked complainant during a
heated discussion, "do you want to step outside and settle this?" Also,
when complainant approached the District Director in order to discuss
"union business," the District Director accused complainant of, "telling
[him] he wasn't a man" and then asked him to step outside.
With regard to his third allegation, complainant averred that on August
30, 1995, while on annual leave, he was paged at home by the Acting
Section Chief. When complainant contacted the office, the District
Director informed complainant that a report needed to be turned in by
September 1, 1995. Although it was complainant's understanding that
the report was not due until September 7, 1995, he completed the report
by September 1, 1995, while on annual leave. Complainant maintained in
his affidavit that he had discussed the deadline with the Branch Chief
earlier, and the Branch Chief knew that complainant was scheduled to be
on leave over September 1, 1995. According to complainant's affidavit,
completing the report while on annual leave caused him emotional distress.
He was, however, reimbursed with compensatory time.
Complainant also alleged that upon his return from annual leave,
the District Director asked him who had approved his leave request.
Complainant averred that the District Director held this conversation
in front of another employee, which he found humiliating.
Believing he was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint on August 17, 1995.
At the conclusion of the investigation, complainant requested that the
agency issue a final agency decision.
The FAD concluded that complainant established a prima facie case of
reprisal discrimination. The agency did not dispute that complainant
engaged in EEO activity when he provided a statement to the committee, and
that the Branch Chief was aware that complainant provided the statement.
The agency further found that the adverse actions occurred within close
proximity to complainant's EEO activity, such that a causal relationship
was found.
The agency also found that it had articulated legitimate,
nondiscriminatory reasons for its actions. The Branch Chief stated that
complainant received a "highly successful" rating in 1993 because his
survey accomplishments fell below his co-workers' numbers. For example,
complainant completed six surveys throughout the year, whereas co-workers
had produced between 25 and 40 surveys. Although the Branch Chief
conceded that complainant's work in other areas may have contributed to
the low number of surveys, he denied retaliating against complainant.
With respect to complainant's rating for the period ending in 1995,
the District Director testified that he was the Reviewing Official for
the rating, and that complainant's supervisor was the Rating Official.
The District Director testified he did not support complainant's request
for an "outstanding" rating because his surveys were not timely done.
Complainant's supervisor, who rated complainant "outstanding" the
previous year, stated that he rated complainant "highly successful"
in 1995 because his surveys were not timely. He added that the Branch
Chief did not agree with complainant's 1994 "outstanding" rating.
The District Director responded to complainant's allegations that he
threatened complainant on April 21, 1995. He averred that on that day,
complainant contacted him to discuss union business, but that he was very
busy and could not talk with him at that time. As reason, the District
Director recalled that on that day, he was very busy with phone calls
regarding the Oklahoma City Federal Building bombing.
With respect to complainant's final allegation, the District Director
maintained that it had been his understanding that complainant was
responsible for meeting that particular deadline. Although there
seemed to be some misunderstanding of the date of the deadline, he
believed complainant should have known the report was due on that day.
He acknowledged that he ultimately gave complainant compensatory time
off for the period that he worked while on annual leave. The District
Director added that on September 8, 1995, he asked complainant who had
approved his leave for that time period, but stated that complainant
pulled out a tape recorder and began taping the conversation.
Complainant makes no new contentions on appeal. In response to the
appeal, the agency asks that we affirm the FAD.
After a careful review of the record, based on McDonnell Douglas
Corp. 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), we agree with the agency that complainant failed to present
evidence that more likely than not, the agency's articulated reasons
for its actions were a pretext for discrimination.
As an initial note, complainant failed to present sufficient evidence
that any of the agency's actions were in retaliation for his prior
EEO activity. Although the Branch Chief was aware that all employees
provided statements to the committee, complainant failed to present
sufficient evidence that the Branch Chief was aware of the details of
complainant's statement.
In support of his claims that his ratings were lowered from prior years
due to his prior EEO activity, complainant argues that the agency's
reasons are not credible. Specifically, he contends that he completed
less surveys due to his other contract administration work. Indeed,
after a review of the survey records contained in the record, we find
the agency's position that complainant conducted fewer surveys than his
co-workers well supported. We find however, that complainant failed
to provide sufficient persuasive evidence that proved the agency viewed
contract work as a mitigating circumstance in prior years, but did not
in 1993 and 1995 due to a retaliatory animus.
With respect to complainant's appraisal ending in 1995, we also find
that complainant failed to establish a causal connection between his EEO
activity and the appraisal. The District Director, not the Branch Chief,
was the Reviewing Official for this apprisal. We find that complainant
provided insufficient reason for the District Director to retaliate
against complainant after he provided the statement to the committee.
Also, complainant failed to present evidence that the agency's reason
for its actions was not credible.
To the extent that complainant alleged in his remaining allegations
that he was subjected to harassment, the Commission notes that unless
the conduct is severe, a single incident or group of isolated incidents
will not be regarded as discriminatory harassment. See generally, Walker
v. Ford Motor Co., 684 F. 2d 1355 (11th Cir. 1982). The Commission has
consistently held that a remark or comment unaccompanied by a concrete
action is not a direct and personal deprivation sufficient to render an
individual aggrieved for purposes of Title VII. Simon v. U.S.P.S., EEOC
Request No. 05900866 (October 3, 1990). Thus, the Commission concludes
that the District Director's alleged threats and questions regarding
his report and annual leave were unaccompanied by any concrete action
against complainant.
Accordingly, we find that the incidents alleged by complainant do not
constitute reprisal discrimination or harassment. We therefore find
that complainant has not proven, by a preponderance of the evidence, that
the agency discriminated against him as alleged. Accordingly, the Equal
Employment Opportunity Commission AFFIRMS the agency's final decision.
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
January 6, 2000
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:
_________________________
__________________________
1On 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.