Larry A. Sindel, Complainant, Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMay 12, 2000
01985810 (E.E.O.C. May. 12, 2000)

01985810

05-12-2000

Larry A. Sindel, Complainant, Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Larry A. Sindel v. Department of Veterans Affairs

01985810

May 12, 2000

Larry A. Sindel, )

Complainant, )

) Appeal No. 01985810

) Agency No. 96-1750

)

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

)

DECISION

INTRODUCTION

On July 21, 1998, Larry A. Sindel (the complainant) timely filed an

appeal with the Equal Employment Opportunity Commission (the Commission)

from a final agency decision (FAD) dated June 22, 1998, 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> The Commission hereby accepts the appeal in accordance with 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).

ISSUE PRESENTED

The issue on appeal is whether the agency properly determined that

complainant had failed to prove that the agency discriminated against

him based on sex (male) and reprisal (prior EEO activity) when he was

issued a letter of admonishment.

BACKGROUND

Complainant was employed by the agency as a Veterans Claims Examiner

(Ratings Analyst) at the agency's Regional Office in Denver, Colorado.

From the record, it seems that complainant and a coworker (CO1) had

developed an adversarial relationship over a period of time and that

management was well aware of the nature of their personal interactions.

CO1 was also a Veterans Claims Examiner (Ratings Analyst) at the same

facility as the complainant. Prior to May 1996, CO1 was in a separate

unit from complainant, but during April 1996 he requested a transfer to

a different unit so that he could gain experience for future possible

promotions. On May 21,1996, CO1 was reassigned to complainant's unit,

but was in a different subunit from complainant. His desk was moved

into the same unit area as complainant's but he was no closer to

complainant's physical location after the move than he was prior to

the transfer (approximately 50 feet away). Management testified that

although they were reassigning CO1 to the same unit as complainant,

they were cognizant of the conflict between CO1 and complainant, and

testified that in his new location, CO1 was likely to come into less

contact with complainant because his desk was no longer in view of a

main traffic pattern. CO1 and complainant were to have minimal work

interactions with each other, and if they needed to contact each other,

they were told to go through their supervisors.

Prior to CO1's move, CO1 alleged that on May 3, 1996, in the parking lot

after work, the complainant had extended his arm and simulated pointing a

gun at CO1, and mouthed the word "pow" as if he were imitating shooting

CO1. CO1 reported this incident to his supervisor the next day and

also reported it to the local police department. The police declined

to pursue the matter for lack of witnesses and evidence. CO1 claimed

that he was in fear for his life.

Complainant initiated EEO Counseling on May 24, 1996. He claimed that

management had moved CO1 into his same unit as a way of "setting him up"

and trying to intimidate him in reprisal for his previous EEO complaints.

On June 4, 1996, a management official (MO1), complainant's third level

supervisor (who at the time was functioning as the Acting Adjudication

Officer in charge of the division), issued a letter of admonishment to

complainant for creating a hostile working environment in the division.

The letter specified that complainant was being admonished for the May

3 incident with CO1 in the parking lot, which had followed a previous

incident in which the complainant had allegedly told CO1 that CO1 had

"better watch out for" him. Complainant was also advised that another

coworker (CO2) had complained that complainant had forced her into a wall

to avoid running into him after he walked straight into her path in the

hallway. This was after complainant allegedly had, two days in a row, cut

CO2 off in traffic on their way to work. In 1995, CO2 was selected for

a promotion for which complainant had also applied but was not selected;

complainant previously filed an EEO complaint regarding this matter.

Complainant filed a formal complaint on June 24, 1996, alleging

discrimination on the bases of sex and reprisal when, on June 4, 1996,

he was issued a letter of admonishment for creating a hostile work

environment by threatening his coworkers. As corrective action, he

requested that CO1 be removed from his unit, and that disciplinary action

be taken against MO1. The agency accepted the complaint for investigation

and processing. At the conclusion of the investigation, the agency

issued a copy of its investigative report and notified complainant of

his right to request an administrative hearing. On December 18, 1997,

complainant requested a decision on the record, and the agency issued

its FAD on June 22, 1998.

In its FAD, the agency found that the complainant had established a prima

facie case of reprisal discrimination because he demonstrated that he

had engaged in protected activity because he had filed five previous

EEO complaints in 1994 and 1995; MO1 was aware of his EEO activity

because he had been named as a responsible official in at least one

of those previous EEO complaints; complainant had contacted an EEO

Counselor within the two weeks prior to the letter of admonishment;

and MO1 was aware of complainant's most recent EEO contact. As its

legitimate, nondiscriminatory reason, the agency offered the history of

complainant and CO1, and claimed that the complainant had a record of

"rude, hostile and unpleasant" behavior in the workplace. According to

MO1, numerous employees had complained about complainant's "disruptive

and angry" behavior and were "terrified" of him. MO1 had previously

counseled complainant for this behavior in 1994, and moved him into a

different unit, at a time when MO1 was again the Acting Adjudication

Officer. MO1 claimed that when the 1996 incidents occurred, he wanted

to send a clear message to complainant that this behavior would not

be tolerated, and wrote the letter of admonishment. The FAD further

stated that complainant had failed to establish that the legitimate,

nondiscriminatory reasons articulated by the agency for its decision were

a pretext for discrimination. The FAD did not address complainant's

claim of sex discrimination.

This appeal followed. Complainant argued that MO1 had a history of taking

adverse actions against him after he initiated EEO activity, and that

MO1 had engaged in behavior in the past which had threatened another

agency employee for which he had not been disciplined. Allegedly,

MO1 had stated to a coworker during a phone conversation, "Do I have

to get a baseball bat and knock some sense into your head?" While MO1

claimed to have been joking, the coworker considered this utterance

a threat, even though he did not report it to a supervisor or file a

complaint. Complainant also claimed that when MO1 was not the official

responsible for investigating incidents between complainant and CO1,

the incidents were found to be groundless; he claimed this was evidence

of MO1's retaliation against him. The record reveals that during the

investigation into the parking lot incident, complainant's response was

that CO1 mis-perceived what complainant was doing because CO1 did not

have on his glasses and is nearsighted. He also claimed that he had

been threatened by CO1 in the past when CO1 told him that he would "pop

[complainant] on the head" so that he would "drop to the floor and flop

around like a chicken."

ANALYSIS AND FINDINGS

A claim of disparate treatment is examined under the three-part analysis

first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792

(1973). For complainant to prevail, he 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 burden then shifts to the agency to articulate a

legitimate, nondiscriminatory reason for its actions. Texas Department of

Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency

has met its burden, the complainant bears the ultimate responsibility

to persuade the fact finder by a preponderance of the evidence that

the agency acted on the basis of a prohibited reason. St. Mary's Honor

Center v. Hicks, 509 U.S. 502 (1993).

To establish a prima facie case of reprisal, a complainant must show that:

1) he was engaged in protected activity; 2) the alleged discriminating

officials were aware of the protected activity; 3) the complainant

was subsequently subjected to adverse treatment; and 4) the adverse

action followed the protected activity within such a period of time

that retaliatory motivation may be inferred. Hochstadt v. Worcester

Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324

(D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976); Manoharan v. Columbia

University College of Physicians and Surgeons, 842 F.2d 590, 593 (2d

Cir. 1988); Wrenn v. Gould, 808 F.2d 493, 500 (6th Cir. 1987); Frye

v. Department of Labor, EEOC Request No. 05940764 (December 15, 1994).

We find that the agency correctly found that complainant had established

a prima facie case of reprisal discrimination.

The agency claimed that complainant's past workplace behavior, and

his coworkers' "fear" of him, justified the issuance of the letter of

admonishment. We find, however, that the agency's claimed legitimate,

nondiscriminatory reason for issuing the letter to complainant was

a pretext for discrimination. MO1 claimed that numerous employees

were fearful of complainant and that he was aware of the "many written

complaints" on file about complainant and that he received "constant"

additional complaints about complainant's angry and intimidating behavior.

None of these written complaints are in the record to substantiate MO1's

claim. No other management official testified to the same atmosphere

of fear and intimidation allegedly perpetuated by the complainant.

MO1 issued a counseling letter to complainant in 1994 and transferred

him to a different unit on the previous occasion when he was Acting

Adjudication Officer. Between 1994 and the incidents in May 1996, the

record indicates that complainant did not have any disciplinary problems.

While he and CO1 may have had conflicts during this time period, none seem

to have been elevated to a disciplinary level. Additionally, incidents

between complainant and CO1 that happened subsequent to the letter of

admonishment were investigated by different management officials and found

to be groundless in nature. MO1 issued the letter of admonishment one day

after being contacted by the EEO Counselor about, what was at that time,

complainant's informal complaint regarding CO1 being moved into his unit.

MO1 admitted that he had discussed complainant's EEO activity with others

in management positions at the agency and that it "generally was known."

Therefore, we find that complainant was subjected to discrimination

based on reprisal when he was issued the letter of admonishment.<2>

Accordingly, the decision of the agency is REVERSED. On REMAND, the

agency shall comply with the Order below.

ORDER

(1) Within thirty (30) calendar days of the date this decision becomes

final, the agency is ordered to remove the letter of admonishment from

complainant's Official Personnel Folder, and/or all other agency records

regarding the complainant, and any references thereto. The agency

shall also provide any additional relief to which the complainant may

be entitled pursuant to 29 C.F.R. � 1614.501. Within ten (10) calendar

days thereafter, the agency shall notify the complainant in writing

that the ordered action has been taken by the agency. A copy of the

agency's letter to the complainant shall be submitted by the agency to

the Compliance Officer identified below.

(2) Within sixty (60) calendar days of the date this decision

becomes final, the agency is directed to conduct training in Title

VII's prohibitions against reprisal for the management official[s]

(specifically, MO1) who were found to have discriminated against

complainant by engaging in reprisal against him. The agency shall

address these employees' responsibilities with respect to eliminating

discrimination in the workplace and all other supervisory and

managerial responsibilities under equal employment opportunity law.

Documentation evidencing completion of such training shall be submitted

to the Compliance Officer within thirty (30) calendar days thereafter.

(3) The agency shall conduct a supplemental investigation on the issue

of complainant's entitlement to compensatory damages and shall afford

complainant an opportunity to establish a causal relationship between the

incident of discrimination and any pecuniary or non-pecuniary losses. See

West v. Gibson, 119 S. Ct. 1906 (1999); Cobey Turner v. Department of the

Interior, EEOC Appeal Nos. 01956390 and 01960518 (April 27, 1998). The

complainant shall cooperate in the agency's efforts to compute the amount

of compensatory damages, and shall provide all relevant information

requested by the agency. The agency shall issue a final decision on

the issue of compensatory damages. 64 Fed. Reg 37,644, 37,657-58 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.110).

The supplemental investigation and issuance of the final decision shall

be completed within one hundred and twenty (120) calendar days of the

date this decision becomes final. A copy of the final decision must be

submitted to the Compliance Officer, as referenced below.

POSTING ORDER (G1092)

The agency is ORDERED to post at its Regional Office, Denver, Colorado

facility copies of the attached notice. Copies of the notice, after

being signed by the agency's duly authorized representative, shall

be posted by the agency within thirty (30) calendar days of the date

this decision becomes final, and shall remain posted for sixty (60)

consecutive days, in conspicuous places, including all places where

notices to employees are customarily posted. The agency shall take

reasonable steps to ensure that said notices are not altered, defaced,

or covered by any other material. The original signed notice is to be

submitted to the Compliance Officer at the address cited in the paragraph

entitled "Implementation of the Commission's Decision," within ten (10)

calendar days of the expiration of the posting period.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

ATTORNEY'S FEES (H1199)

If complainant has been represented by an attorney (as defined by 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to

an award of reasonable attorney's fees incurred in the processing of the

complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall

be paid by the agency. The attorney shall submit a verified statement of

fees to the agency -- not to the Equal Employment Opportunity Commission,

Office of Federal Operations -- within thirty (30) calendar days of this

decision becoming final. The agency shall then process the claim for

attorney's fees in accordance with 29 C.F.R. � 1614.501.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court WITHIN NINETY (90) CALENDAR DAYS from the date

that you receive this decision. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. 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:

__05-12-00______ __________________________________

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:

_______________ __________________________

Date

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

An Agency of the United States Government

This Notice is posted pursuant to an Order by the United States Equal

Employment Opportunity Commission dated _____________ which found that

a violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq. has occurred at this facility.

Federal law requires that there be no discrimination against any employee

or applicant for employment because of the person's RACE, COLOR, RELIGION,

SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY with respect

to hiring, firing, promotion, compensation, or other terms, conditions

or privileges of employment.

The Department of Veterans Affairs, Regional Office, Denver, Colorado,

supports and will comply with such Federal law and will not take action

against individuals because they have exercised their rights under law.

The Department of Veterans Affairs, Regional Office, Denver, Colorado,

has been found to have discriminated against the individual affected by

the Commission's finding on the basis of reprisal when he was issued

a letter of admonishment. The agency, among other things, has been

ordered to remove the disciplinary action from this individual's personnel

folder, provide training to the responsible management official, and to

provide any additional relief to which the individual may be entitled.

The Department of Veterans Affairs, Regional Office, Denver, Colorado,

will ensure that officials responsible for personnel decisions and

terms and conditions of employment will abide by the requirements of

all Federal equal employment opportunity laws and will not retaliate

against employees who file EEO complaints.

The Department of Veterans Affairs, Regional Office, Denver, Colorado,

will not in any manner restrain, interfere, coerce, or retaliate against

any individual who exercises his or her right to oppose practices made

unlawful by, or who participates in proceedings pursuant to, Federal

equal employment opportunity law.

Date Posted:

Posting Expires:

29 C.F.R. Part 1614

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.

2 While we note that the agency erred in not addressing complainant's

basis of sex discrimination in its analysis, we find that this was

harmless error. Furthermore, because of our finding of discrimination,

based on our determination that complainant was discriminated against

on the basis of reprisal, we do not find it necessary to address the

basis of sex in our analysis.