01A13188
08-05-2002
Michael Scarano, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Michael Scarano v. Department of the Army
01A13188
August 5, 2002
.
Michael Scarano,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A13188
Agency No. AUFSFO9806FO13
Hearing No. 160-99-8496X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) 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 order.
The record reveals that complainant, a Civil Engineer, GS-0810-13, at the
agency's U.S. Army Corps of Engineers (USACE) North Atlantic Division,
in New York, New York, filed a formal EEO complaint on June 26, 1998,
alleging that the agency had discriminated against him on the basis of
national origin (Italian-American) an reprisal for prior EEO activity
when:
(1) On January 16, 1998, he was evaluated at the S-2 level for the
1996-1997 rating period;
Complainant's supervisor (A1) created a hostile work environment; and,
In October 1997, the agency canceled the vacancy announcement for the
position of Chief, Construction Service Branch.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
As to the S-2 rating, the AJ concluded that complainant established a
prima facie case of reprisal discrimination. The AJ further concluded
that the agency articulated legitimate, nondiscriminatory reasons
for its actions. The AJ found that the A1 gave complainant the S-2
rating based on complainant's resistance to changes in the office, lack
of cooperation with EPA superfund projects and failure to implement
the Resident Management System in a timely manner. The AJ concluded
that complainant failed to establish that A1's reason was pretextual,
noting that the record reveals that there was animosity between A1 and
complainant two years prior to complainant's prior EEO activity. As to
national origin, the AJ found that complainant failed to establish a prima
facie case because he did not show that similarly situated individuals,
not in his protected group, received a higher rating.
The AJ additionally found, concerning the vacancy announcement, that
the agency articulated a legitimate, nondiscriminatory reason for its
action. Specifically, it was decided that the GS-14 position would
be utilized more beneficially in the Area Offices of the District,
where the implementation of the dredging projects would take place.
Additionally, the AJ noted that complainant was not the only applicant
affected by the cancellation. Specifically, there were 13 people,
including complainant, on the best qualified list. Therefore, the AJ
concluded that complainant failed to show that the cancellation was a
result of his protected EEO activity. The AJ addressed A1's alleged
remark that complainant and his former supervisor were alike because
they are Italian and �hot blooded and shoot from the hip,� however,
concluding that this was an isolated incident that is not enough to
prove discrimination. The AJ also found that complainant failed to
prove that his working conditions were tainted by discriminatory animus
toward his national origin or reprisal for his EEO activity, therefore,
complainant failed to establish that he was subjected to unlawful hostile
work environment discrimination. In so finding, the AJ noted that the
record does show that �the animosity between the participants based on
non discriminatory jealousies and insecurities.� The agency's final
order implemented the AJ's decision.
On appeal, complainant restates arguments previously made at the hearing,
in particular the argument that A1 was not his proper rater for the
1996-1997 performance period. Complainant also contends that he has
presented a preponderance of direct and indirect evidence to indicate
that A1, in conjunction with the Senior Rater (A2), acted to lower
complainant's performance rating, and deliberately cancelled a recruit
action to permanently fill the position which complainant held for three
years on a temporary promotional basis. Complainant also contends that
the AJ erred in several ways, including the following:
Finding that there were no individuals similarly situated to complainant
(there were actually four other similarly situated GS-14 supervisors);
Relying so heavily on the testimony of the Former Management Assistant
(M1);
Excluding as witnesses two individuals named by complainant; and,
Failing to recognize, based on other evidence of record, that A1 perjured
himself and submitted a forged document (DA Form 7222-1).
M1 also submits, in support of complainant's appeal, a sworn affidavit,
addressing what she states are erroneous findings by the AJ, and
misunderstandings by the AJ or her testimony. In response, the agency
restates the position it took in its FAD, and requests that we affirm
its final order.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
We begin by noting that Administrative Judges have broad discretion in
the conduct of hearings. See 29 C.F.R. � 1614.109(e); Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO- MD-110) at
7-8 to 7-14 (revised November 9, 1999); Bennett v. Department of the Navy,
EEOC Request No. 05980746 (September 19, 2000). On appeal, M1 submits a
sworn affidavit which provides information on issues that she contends she
was not asked about during the Administrative Hearing, such as whether
complainant was retaliated against by A1. See Complainant's Brief in
Support of Appeal, Ex. 1. However, complainant had the opportunity to
fully conduct direct and redirect examination on M1 during the hearing.
Additionally, we find that M1 was asked during the hearing about her
knowledge of retaliation. See Hearing Transcript (HT), at p. 89.
Complainant had the opportunity to follow-up with additional questions
or clarification, but chose not to do so. As to the AJ's disapproval of
complainant's request for two witnesses, we are not persuaded that the
AJ abused her discretion in determining that their proffered testimony
was not relevant.
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
He must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Assuming, arguendo, that complainant established a prima facie case of
national origin and reprisal discrimination, we turn to the agency to
articulate legitimate, nondiscriminatory reasons for its actions. As to
issue one, the agency explains that the individual who was the Acting
Chief (C1), was removed from his position in August 1997. See HT, Vol. 1
at 95. Prior to leaving, C1 had prepared a rating of S-1 for complainant.
Id. at 71. When A1 assumed C1's former duties, he and A2 decided to
extend the rating period until the end of September 1997, in order
for A1 to have time to evaluate complainant's performance. Id. at 43.
A1 and A2 explain that complainant received an S-2 rating because of
his resistance to changes in the office, lack of cooperation with EPA
superfund projects and failure to implement the Resident Management
system in a timely manner. See HT, Vol. 1 at 96-101, Vol. 2 at 26-30.
As to issue three, the position at issue was cancelled as a result of
A2's decision that the GS-14 position would be utilized more beneficially
in the Area Offices of the District, where the implementation of the
dredging projects would take place. HT, Vol. 1, at p. 112-113.
In an attempt to establish pretext, complainant contends that his work
warranted an S-1 rating, and he also notes that the superfund projects
were not part of his job description. Complainant additionally
argues that A1 was not properly his rater. A1 and A2's testimony,
however, indicate otherwise, and the AJ's finding that A1 was properly
complainant's rater is supported by substantial evidence in the record.
Even assuming, arguendo, that A1 committed a procedural violation in
rating complainant, and that complainant's work actually warranted an
S-1, this did not necessarily render the S-2 rating discriminatory.<1>
Complainant also contends that the position of Chief, Construction
Services Branch, was cancelled specifically in order to discriminate
against him. We are not persuaded, however, by a preponderance of
the evidence, that the agency's reasons are pretextual, especially
given that complainant was not the only person adversely affected by
the cancellation.
As to complainant's allegation of hostile work environment, we note that
complainant may sustain a Title VII cause of action of harassment if
the discriminatory conduct was so severe or pervasive that it created
a hostile work environment on the basis of his race, color, gender,
religion, sex, national origin or retaliation. See Harris v. Forklift
Systems, Inc., U.S. 17, 21 (1993); EEOC Notice No. 915.002 (March 8,
1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at
3, 6; Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997). In determining whether or not a hostile environment
violates Title VII, our regulations require that "...the challenged
conduct must not only be sufficiently severe or pervasive objectively
to offend a reasonable person, but also must be subjectively perceived
as abusive by the charging party." EEOC Notice No. 915.002 (March 8,
1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 7.
Applying these principles to the facts in this case, we conclude that
complainant did not establish that S1 was motivated by discrimination
in the actions at issue.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We note
that complainant failed to present evidence that any of the agency's
actions were in retaliation for complainant's prior EEO activity or were
motivated by discriminatory animus toward complainant's national origin.
We discern no basis to disturb the AJ's decision. Therefore, after
a careful review of the record, including complainant's contentions on
appeal, the agency's response, and arguments and evidence not specifically
addressed in this decision, we affirm the agency's final order.
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
August 5, 2002
__________________
Date
1The record reveals that the agency withdrew the S-2 rating, after it
was deemed to be administratively deficient, and allowed the S-1 rating
from the prior year to control the 1996-1997 period.