01985997
04-24-2000
Milbert B. Hill, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Milbert B. Hill v. Department of Agriculture
01985997
April 24, 2000
Milbert B. Hill, )
Complainant, )
) Appeal No. 01985997
v. ) Agency No. 950505
)
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of race (black), sex (male), age (48), and reprisal in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq. and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. � 621 et seq.<1>
ISSUE PRESENTED
The issue on appeal is whether complainant has established that the
agency discriminated against him based on the above factors.
BACKGROUND
During the period in question, complainant was employed as an
Intermittent<2> Agricultural Commodity Technician (IACT), GS-5, in a
Louisiana facility of the agency. On December 4, 1994, complainant and
two other IACTs, (C-1 and C-2<3>), were working at a grain elevator
when a permanent employee, (C-3), approached them. C-1 and C-3 were
black males who were 40 or more years of age. C-2 was a white male who
was more than 40 years old. C-3's elevator shut down and he wanted to
replace one of the three IACTs at the working elevator. C-1 notified
the shift supervisor that C-3 was replacing him at the elevator and then
left work. C-2 also left after notifying the supervisor that he was
departing.<4> Complainant left work without notifying the supervisor.
In a letter dated January 17, 1995, the Field Office Manager (Manager)
terminated complainant effective January 21, 1995 for conducting an
impromptu strike of the government.
Believing he was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint on June 5, 1995.
In it, he alleged that the agency discriminated against him based on
race (black), sex (male), age (48), and reprisal (prior EEO activity)
when it terminated his employment.
The agency issued a FAD on June 20, 1998 concluding that complainant
failed to show that the agency discriminated against him because he
did not establish its articulated reason was mere pretext. This appeal
followed.
ANALYSIS AND FINDINGS
When a complainant relies on circumstantial evidence to prove an
agency's discriminatory intent or motive, there is a three step,
burden-shifting process. McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). The initial burden is on the complainant to establish a prima
facie case of discrimination. Id. at 802. The burden then shifts to
the agency to articulate some legitimate, nondiscriminatory reason for
its challenged action. Id. If the agency is successful, the complainant
must then prove, by a preponderance of the evidence, that the legitimate,
nondiscriminatory reason articulated by the agency is merely pretext for
its discrimination. Id. at 804. Although this analysis was developed
in the context of Title VII, it is equally applicable to claims brought
under the ADEA. Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979).
To establish discrimination under the ADEA, complainant must establish
that age was a determinative factor in the sense that, "but for"
his age, he would not have been subjected to the action at issue.
La Montagne v. American Convenience Products, Inc., 750 F.2d 1405, 1409
(7th Cir. 1984).
Because the agency articulated a legitimate, nondiscriminatory reason for
its action, we may proceed directly to determining whether complainant
satisfied his burden for showing pretext. Haas v. Department of Commerce,
EEOC Request No. 05970837 (July 7, 1999)(citing U.S. Postal Service
Board v. Aikens, 460 U.S. 711, 713-14 (1983)). Complainant may do this
in one of two ways, either directly, by showing that a discriminatory
reason more likely motivated the agency, or indirectly, by showing that
the agency's proffered explanation is unworthy of credence. Texas Dep't
of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). Essentially,
the fact finder must be persuaded by the complainant that the agency's
articulated reason was false and that its real reason was discrimination.
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515 (1993).
The agency stated that it terminated complainant because he left work
without notifying the shift supervisor. The agency further stated that
there was a "bone of contention" between intermittent and permanent
employees so complainant left work as a form of protest or strike
against the Federal government. In addition, the agency indicated that
only complainant left without authorization and even if C-2 did leave
without authorization, he resigned as of December 24, 1994. Therefore,
there would have been no need to discipline him.
Complainant indicated that the agency's action was based on discrimination
because its articulated reason was false. Complainant stated that he
and the other two IACTs left without authorization and he was the only
one terminated. He further stated that removal was too severe for his
infraction.<5>
The complainant's evidence of pretext is tenuous, thus, it is
insufficient. Medina-Munoz v. Reynolds Tobacco Co., 896 F.2d 5,
10 (1st Cir. 1990). Complainant failed to prove race, sex, and age
discrimination.
Complainant also alleged reprisal. In order to establish a prima facie
case of discrimination for an allegation of reprisal, complainant
must show: (1) that he engaged in prior protected activity, e.g.,
participated in a Title VII proceeding; (2) that the responsible
management official was aware of the protected activity; (3) that he
was subsequently disadvantaged by an adverse action; and, (4) that
there is a causal link between the protected activity and the adverse
employment action. Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F.Supp. 318, 324 (D. Mass), affirmed, 545 F.2d
222 (1st Cir. 1976); see also Mitchell v. Baldridge, 759 F.2d 80,
86 (D.C. Cir. 1985); Burrus V. United Telephone Co. of Kansas, Inc.,
683 F.2d 339, 343 (10thCir. 1982), cert. denied, 459 U.S. 1071 (1982).
The causal connection may be shown by evidence that the adverse action
followed the protected activity within such a period of time and in such
a manner that a reprisal motive is inferred. Simens v. Department of
Justice, EEOC Request No. 05950113 (March 28, 1996) (citations omitted).
"Generally, the Commission has held that nexus may be established if
events occurred within one year of each other." Patton v. Department of
the Navy, EEOC Request No. 05950124 (June 27, 1996).
In November 1994, complainant initiated EEO counseling alleging
discrimination on the bases of race, sex and age regarding the number of
hours he was allowed to work. The RMO was the same as in this complaint.
Complainant did not file a formal complaint because he was unsatisfied
with the EEO Counselor's efforts. The manager admitted that he was
aware of complainant's prior EEO activity. However, he maintained
that complainant was terminated because of his unauthorized absence
from work. The Manager submitted documentation to show that removal
was an appropriate discipline for complainant's actions. Accordingly,
complainant has failed to prove that the agency discriminated against him.
CONCLUSION
The Commission finds that complainant failed to present evidence that
more likely than not, the agency's articulated reasons for its actions
were a pretext for discrimination. 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 finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
April 24, 2000
____________________________
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
1On 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.
Complainant, in his formal complaint, indicated sexual harassment as
a basis of discrimination. However, he did not provide a statement of
facts to support this basis and the agency did not address this basis
in its FAD. Therefore, it is not addressed herein.
2According to the record, an intermittent employee was a temporary
employee who was not guaranteed work hours, who did not gain status,
who did not accrue leave and who only worked when a regular employee
was absent or when there was more work than the regular employees
could handle.
3The record revealed that C-1 was made a permanent employee and that
C-2 resigned from the agency effective December 24, 1994. C-2 submitted
his notice of resignation prior to the incident at issue.
4The Commission notes that there apparently was confusion regarding
whether C-2 informed the supervisor that he was leaving. The manager
stated in the termination letter to complainant that he and another IACT
left without authorization. However, in his affidavit dated August 27,
1996, the manager stated that complainant was the only one who left
without authorization. In addition, the area manager seemed uncertain
of the circumstances surrounding C-2 in his affidavit.
5The agency submitted a copy of its Supervisor's Desk Guide which
indicated that discipline ranging from a reprimand to removal was
appropriate for the first offense of an unauthorized absence from duty.