Mark H. White, Complainant,v.Gale A. Norton, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionSep 19, 2000
01A31669 (E.E.O.C. Sep. 19, 2000)

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.