01A31669
09-19-2000
Mark H. White, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Mark H. White v. Department of the Interior
01A31669
February 25, 2004
.
Mark H. White,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A31669
Agency No. LSM-00-005
DECISION
Complainant timely initiated an appeal 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 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
affirms the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Supervisory Accountant, GS-14, at the agency's Office of Surface
Mining (OSM), in the Division of Financial Management (DFM), Finance and
Administration Directorate, in Lakewood, Colorado. Complainant sought EEO
counseling and subsequently filed formal complaints on February 19, 2000,
and May 24, 2000, alleging that he was discriminated against on the basis
of race (African-American) and in reprisal for prior EEO activity when:
(1) on October 24, 1999, he received an e-mail message from his
supervisor which temporarily detailed him from a supervisor/managerial
position to a non-supervisory/non-managerial position;
on November 22, 1999, he received a written reprimand from his
supervisor;
on May 23, 2000, he received an SF-50 reassigning him from his
Supervisory Accountant position to a staff Accountant position; and
on June 4, 2000, he was not selected for the position of Supervisory/Fee
Accounting and Collection Team, GS-14.<1>
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
initially requested a hearing by an EEOC Administrative Judge (AJ), but
the AJ remanded the complaint to the agency for a final agency decision
due to complainant's failure to cooperate, pursuant to 29 C.F.R. ��
1614.109(b); 1614.107(a)(7).
In its FAD, the agency concluded that management articulated legitimate,
non-discriminatory reasons for its actions. Specifically, the agency
found that complainant was temporarily detailed from a supervisory
position to a non-supervisory position because he had engaged in repeated
harassing conduct which necessitated management's attention. The agency
also found that a series of hostile incidents (15) involving complainant
occurred between late 1997 and 1999 which caused management to question
complainant's ability to get along with co-workers, employees from other
offices, and outside contractors. The agency noted that management
received numerous allegations of harassment in which complainant was
identified as the major harasser, and that management conducted an inquiry
to determine if there was a hostile work environment in the division.
Specifically, the employees described complainant as frequently being
hostile and angry. The agency further found that management was advised
by the EEO Office to detail complainant to a non-supervisory position
and place him on administrative leave during the period when the hostile
work environment inquiry was conducted.
The agency found that complainant's supervisor (S1) issued a letter of
reprimand to complainant because of his disrespectful conduct towards
her in failing to follow her instructions to move his belongings to
his new office where he had been detailed. The agency also found
that S1 asked complainant to be moved by October 29, 1999, but when
he returned to work on November 3, 1999, after being on sick leave,
she extended this deadline to November 4, 1999. The agency further
found that when complainant failed to meet his deadline, S1 met with
him on November 5, 1999, and told him to be moved by close of business
on that day which he resisted because he wanted the time extended until
November 8 and 9, 1999. The agency found that S1 informed complainant
that if he was not moved by close of business on November 5, 1999, he
would be subjected to disciplinary action, and that complainant became
very angry and threatened her, and consequently, S1 issued a letter of
reprimand based on complainant's unprofessional and disrespectful conduct.
Regarding claim (3), the agency found that after S1 reviewed the hostile
work environment inquiry report, which concluded that complainant had
engaged in repeated harassment, intimidation and rude behavior toward
supervisors, co-workers, and contractors with the DFM, S1 decided
that the findings of the report warranted his being relieved of his
supervisory duties. The agency also found that the Personnel Action Form
SF-50B showed, that the permanent reassignment did not, and would not,
result in loss of grade or pay and complainant retained his GS-14 salary.
Regarding, claim (4), the agency found that complainant was not selected
for the position at issue because he had previously held the position,
but had lost the position because of his repeated hostile and intimidating
conduct in the work place against staff, supervisors and contractors.
The agency noted that during the course of the investigation, complainant
alleges that he was subjected to a hostile work environment. The agency
found that all of the alleged adverse actions taken concerning complainant
were based on his own repeated harassing conduct and unprofessional
behavior. The agency concluded that there was no evidence of severe
or pervasive harassment that altered complainant's work conditions.
Complainant makes no new contentions on appeal. The agency requests
that we affirm its FAD.
ANALYSIS AND FINDINGS
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979).
A complainant 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 reason was a factor
in the adverse employment action. McDonnell Douglas Corp. v. Green, 411
U.S. at 802; Furnco Construction Corp v. Waters, 438 U.S. 567 (1978).
Next, the agency must articulate a legitimate, nondiscriminatory reason
for its action(s). Texas Department of Community Affairs v. Burdine,
450 U.S. 248 (1981). After the agency has offered the reason for its
action, the burden returns to the complainant to demonstrate, by a
preponderance of the evidence, that the agency's reason was pretextual,
that is, it was not the true reason or the action was influenced by
legally impermissible criteria. Burdine, 450 U.S. at 253; St. Mary's
Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
the complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. U.S. Postal Service
Bd. Of Governors v. Aikens, 460 U.S. 711, 713-714 (1983).
Assuming arguendo, that complainant established a prima facie case
of discrimination based on race or retaliation, the Commission finds
that the agency has articulated a legitimate, nondiscriminatory reason
for its actions. Specifically, the record reveals that the agency's
actions, (e.g. detail to a non supervisory position, letter of reprimand,
reassignment to a non supervisory position and not selecting him for a
supervisory position) were based on complainant's harassing conduct and
unprofessional behavior.
The burden returns to complainant to establish that the agency's
explanation was a pretext for discrimination. Upon review, the Commission
finds that complainant has failed to do so. In reaching this conclusion,
we note that complainant denied that he was hostile and stated that
management's reasons for its actions were based solely on his race and
reprisal. However, the record does not support complainant's contentions.
More specifically, the record reveals that approximately 31 employees
were interviewed during the inquiry and were asked about the hostile
work environment at the office, and that complainant was mentioned more
often than anyone else in the DFM in connection with the hostile work
environment.
Finally, under the standards set forth in Harris v. Forklift Systems,
Inc., complainant's claim of harassment must fail. See Enforcement
Guidance on Harris v. Forklift Systems, Inc. at 3, 6 (March 8, 1994).
A prima facie case of harassment is precluded based on our findings that
complainant failed to establish that any of the actions taken by the
agency were motivated by his race or reprisal. See Oakley v. United
States Postal Service, EEOC Appeal No. 01982923. Therefore, after a
careful review of the record, and arguments and evidence not specifically
addressed in this decision, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
01A31669
__________________
Date
1On September 19, 2000, pursuant to complainant's request, the
agency amended the complaint and included claim (4). The agency also
consolidated complainant's claim and conducted only one investigation.