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.