01A12234
08-21-2002
Regnal Lowell Meredith, Complainant, v. John Ashcroft, Attorney General, Department of Justice (United States Marshals Service), Agency.
Regnal Lowell Meredith v. Department of Justice
01A12234
August 21, 2002
.
Regnal Lowell Meredith,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice
(United States Marshals Service),
Agency.
Appeal No. 01A12234
Agency Nos. M-99-0038 and M-99-0105
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaints 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.; and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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 Deputy U.S. Marshal, GS-12, at the agency's Eastern District of
Kentucky, Lexington, KY facility. Complainant sought EEO counseling
and subsequently filed a formal complaint on September 4, 1999, and
a second formal complaint on December 30, 1999, alleging that he was
discriminated against on the bases of sex (male), age (D.O.B. 1/29/54),
and reprisal for prior EEO activity when:
Complaint No. M-99-0038
(1) In January 1999, the Supervisory Deputy U.S. Marshal (S1) delayed
returning complainant's Merit Promotion package for corrections before
she would sign-off/certify it, causing complainant to miss a promotion
opportunity.
On May 19, 1999, S1 made condescending and hostile remarks to complainant
when he asked for Fitness-in-Training (FIT) time.
On May 20, 1999, S1 returned a travel voucher to complainant and said
that she was investigating the voucher.
On July 27, 1999, S1 denied his request to have a replacement sent in
his place on the New York special assignment.
In May 1999, complainant learned that the Chief Deputy U.S. Marshal
(S2) was conducting his own investigation based on false and malicious
rumors about the complainant and an alleged sexual relationship with
a female contract guard.
Complaint No. M-99-0105
On September 14, 1999, S1 issued him a letter of instruction which
required complainant to call either S1 or the acting supervisor, on the
day before he returned to work from an outside assignment or approved
leave, between 4:00 and 5:00 p.m., to obtain his work schedule for the
next day.
On December 17, 1999, even after the December 3, 1999, grievance
adjudication decision was issued rescinding the instruction about
calling in when in an approved leave status, S1 stated to complainant
that he was to call in between 4:00 and 5:00.
The agency consolidated the complaints, and 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 requested that the agency issue a
final decision.
In its FAD, the agency concluded that the record did not support
complainant's claim that his supervisors had discriminated against him
or had subjected him to a hostile work environment based on his sex,
or age, or had retaliated against him based on his prior EEO activity.
CONTENTION ON APPEAL
Neither party submitted contentions on appeal.
ANALYSIS AND FINDINGS
Sex and Age Discrimination
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case is a
three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). First, complainant must 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, supra at 802. Next, the agency must articulate a legitimate,
nondiscriminatory reason(s) for its actions. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination. Id. at 256.
Reprisal
Claims of reprisal discrimination are also examined under the tripartite
analysis first enunciated in McDonnell Douglas Corporation v. Green,
supra. To establish a prima facie case of reprisal discrimination, the
complainant must show that (1) he engaged in prior protected activity,
(2) the acting agency official was aware of the protected activity, (3)
he was subsequently disadvantaged by an adverse action, and (4) there
is a causal link between the protected activity and the adverse action.
Simens v. Department of Justice, EEOC Request No. 05950113 (March 28,
1996) (citations omitted).
Regarding complainant's claim of reprisal, the Commission has stated that
adverse actions need not qualify as "ultimate employment actions" or
materially affect the terms and conditions of employment to constitute
retaliation. Lindsey v. United States Postal Serv., EEOC Request
No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual, No. 915.003
(May 20, 1998)). Instead, the statutory retaliation clauses prohibit
any adverse treatment that is based upon a retaliatory motive and is
reasonably likely to deter the charging party or others from engaging
in protected activity. Id.
Harassment-Hostile Work Environment
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, religion, or protected
activity under the anti-discrimination statutes is unlawful, if it is
sufficiently patterned or pervasive. McKinney v. Dole, 765 F.2d 1129,
1138- 1139 (D.C. Cir. 1985). A single incident or group of isolated
incidents will not be regarded as discriminatory harassment unless the
conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th
Cir. 1982). Whether the harassment is sufficiently severe to trigger
a violation must be determined by looking at all of the circumstances,
including the frequency of the discriminatory conduct, its severity,
whether it is physically threatening or humiliating, or a mere offensive
utterance, and whether it unreasonably interferes with an employee's work
performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).
In determining whether an objectively hostile or abusive work environment
existed, the trier of fact should consider whether a reasonable person
in the complainant's circumstances would have found the alleged behavior
to be hostile or abusive.
Complaint No. M-99-0038
Issue (1)-Merit Promotion Package. Complainant claimed that S1 corrected
and returned his merit promotion package in an untimely manner, and that,
as a result, the deadline had passed for its submission. S1 stated
that she advised complainant that he had not completely filled out
the forms, i.e., that there were five or six topics that needed to be
addressed under each of the five experience areas; and that there were
several grammatical and typographical errors in what he had submitted.
S1 stated that she gave complainant a choice of having her sign the
packet or returning it to him; and if he decided to correct the package,
S1 would give him an extra week to complete it and get it back to her.
S1 stated that she worked on and made suggestions to complainant's package
to help him in seeking a promotion, and not for any discriminatory reason.
This is a legitimate, nondiscriminatory reason for the agency's action.
Therefore, the burden returns to complainant to demonstrate that the
agency's reasons were a pretext for discrimination, that is, that the
agency's reasons were not true and that the agency was more likely
motivated by discriminatory reasons. Complainant alleged that S1's
action in not timely returning the promotion package was based on age,
sex, and reprisal discrimination. However, in light of the fact that
S1 gave complainant an additional week to return the completed package,
the complainant has not met his burden in this regard. Complainant has
not provided sufficient evidence that would persuade us that the agency's
reasons for its actions were a pretext for discrimination.
Issue (2)-Fitness-in-Training (FIT) time. Complainant alleges that
when he and another deputy requested to leave 40 minutes early for
fitness time, S1 questioned whether he was really going to work out.
Complainant alleged that on another occasion, S1 asked complainant if he
was going home indicating that she did not think that he was taking FIT.
S1 testified that she had granted complainant's request for FIT time that
was to begin at 4:00 p.m., however, when he and another deputy asked to
leave earlier to get the other worker's vehicle, she advised them that
they could wait until closer to 4:00 p. m. to leave. Complainant has
not demonstrated that S1's action in questioning his request to leave
early for FIT time was an adverse employment action, and therefore under
either sex or age discrimination, he has not proven a prima facie case.
Further, complainant has not established a prima facie case of reprisal
discrimination because he has not demonstrated that S1's action was
reasonably likely to deter complainant or others from engaging in
protected activity.
Issue (3)-Travel Vouchers. Complainant testified that he submitted
vouchers for payment, and that S1 told him that she was �looking into
something.� Complainant stated that he had no knowledge of any other
deputy having his or her travel vouchers returned, and that he was being
treated as if there was an investigation going on. S2 testified that
the hours on the voucher did not match the hours on complainant's daily
log, and deserved scrutiny. S2 further testified that S1 was within her
rights as the approving official to question the voucher. S1 testified
that she advised complainant that his voucher had problems, in that the
voucher and his hours of work did not match. S1 advised complainant
that under agency policy, he was not entitled to a per diem, and provided
complainant a copy of agency policy. S1 testified that reviewing vouchers
for irregularities was not conducting an investigation. Other deputies
stated that vouchers had been returned to them for correction of mistakes
and clarification. The Commission finds that returning a voucher that
does not comply with agency policy is a legitimate, nondiscriminatory
reason for the agency's action. Complainant has not provided sufficient
evidence to persuade us that the agency's reasons for its actions were
a pretext for discrimination.
Issue (4)-Replacement Request.
Complainant testified that if a deputy did not want to go on special
assignment, the deputy could try to find someone to take his or her place.
Complainant stated that he obtained two volunteers for his special
assignment. The United States Marshal (S3) testified that the deputies
managed the selection for special assignment when staffing needs within
the district permits. S2 stated that a supervisor is allowed to intervene
when the workload dictates the presence of an employee in the district.
S1 objected to the two replacements first offered by complainant because
those deputies were needed in their office. Further, S1 did not object
to any other deputy volunteering to go on complainant's assignment,
and complainant was able to get another deputy from a different office
to go in his place. While, this is a legitimate, nondiscriminatory
reason for the agency's action, and pretext has not been shown, the
Commission concurs with the agency's determination that complainant failed
to establish a prima facie case of sex, age, or reprisal harassment
concerning a tangible employment action as to this incident. Further,
complainant has not demonstrated that S1's action were reasonably likely
to deter complainant or others from engaging in protected activity.
Issue (5)-Investigation of an alleged sexual relationship with a female
contract guard.
Complainant alleged sexual harassment/hostile work environment when S2
conducted an investigation based on false and malicious rumors about
complainant and an alleged sexual relationship with a female contract
guard. Complainant stated that only Internal Affairs should have
conducted an investigation. S3 testified that after two federal judges
complained to him about complainant's conduct, he instructed S2 to make
a preliminary investigation of the charges. S1 stated that there had
been no investigation by S3 involving an alleged sexual relationship,
and that the action was taken due to complaints received from outside
of the office. An employee in the Office of Internal Affairs (OIA)
testified that S2 notified OIA that he was conducting an investigation
concerning misconduct; that the reports were sent to the Office of
Inspector General (OIG) as a routine procedure; that OIG returned the
matter to the marshal's office for investigation; and that management
has the responsibility to conduct a preliminary inquiry into alleged
misconduct to determine if there is a basis for the complaint. This is
a legitimate, nondiscriminatory reason for the agency's action.
Concerning pretext, complainant stated that S2 was trying to cover for S1,
and that all the managers in the district were vindictive, and when they
get mad or are questioned, they get even. We find that complainant has
not met his burden to prove by preponderant evidence that the agency's
reasons for its actions were a pretext for discrimination.
Concerning complainant's allegations that the agency's actions in issues
1 through 5 created a hostile work environment, complainant complained
that S1 caused him to miss a promotion deadline, challenged his reasons
for leaving early for fitness time, returned his travel vouchers,
and objected to his replacement request for a special assignment.
Complainant complained that S2 conducted an unwarranted investigation.
There is nothing to indicate that S1 was doing anything more that
carrying out her routine supervisory responsibilities; and that S2
was conducting a preliminary inquiry authorized by the United States
Marshal after complaints by two federal judges for alleged misconduct
by complainant. It appears that the supervisors were acting within
the parameters of their agency's policy and their supervisory roles.
Even if such actions were not routine or normal procedure, complainant
has not shown that his supervisors' conduct toward him was so severe as
to alter the conditions of his employment, and we further note that no
adverse employment action against complainant ultimately resulted.
Complaint No. M-99-0105
Issue (6)-Letter of Instruction. S1 issued a memorandum concerning
obtaining duty assignments for the next day when returning from approved
leave or assignments. After numerous instances of not calling in as
required, S1 issued a Letter of Instruction to complainant. Thereafter,
complainant filed a grievance.
Complainant claimed that it was inconsistent with pay administration
provisions to require him to call in while on approved leave, i.e., in a
non-duty status. The Deputy Director's Grievance Adjudication determined
that complainant's position as a law enforcement officer was covered
under provisions of the Law Enforcement Availability Pay Act (LEAP), and
therefore complainant was not eligible for administratively uncontrolled
overtime (AOU). Therefore the requirement that employees call in to
obtain their next workday schedule should be restricted to periods while
on duty in a pay status and after duty hours under the provisions of LEAP.
The requirement that all operations personnel call in while on approved
leave was rescinded, while the directive concerning calling in when
returning from assignments remained in effect. Complainant's Letter of
Instruction was amended in accordance with the Grievance Adjudication.
Issue (7)-Grievance Adjudication Decision. Complainant called into the
office to take a leave day because his daughter was sick. During the
phone call, complainant stated that S1, in violation of the Grievance
Adjudication Decision, ordered him to call in between 4:00 and 5:00
p.m. to get the next day's assignment, however S1 gave complainant
the assignment over the phone. S1, while admitting that she initially
discussed call-in, immediately corrected herself and told complainant
the assignment.
Complainant, as to his allegations of sex and age discrimination in
regard to these issues, has not shown that he was subjected to an adverse
employment action. Also, while complainant is within the protected
groups, complainant has failed to present evidence that similarly situated
individuals were treated differently under similar circumstances.
Also, the Commission agrees with the FAD that complainant failed to
establish a prima facie case of reprisal regarding either claim, as he
did not demonstrate that he suffered an employment action. While the
record shows that complainant's supervisors were aware of his prior EEO
activity, complainant has not demonstrated that S1's action in issuing
the memorandum to all operation personnel, or a Letter of Instruction
to complainant, was an adverse action, or that there was a causal link
between his protected activity and the action.
Further, there is no evidence that complainant suffered an adverse action
as a result of S1's request, immediately withdrawn, that complainant call
in for his assignment. In fact, complainant acknowledged that S1 gave to
him his assignment in the same phone call. While the Commission takes a
broad view of "adverse action" in the reprisal context, and interprets
the Title VII statutory retaliation clause as prohibiting any adverse
treatment that is based on a retaliatory motive and is reasonably likely
to deter engaging in protected activity, we find that the incidents
contained in claims (6)and (7) did not constitute materially adverse
actions by the agency. Cook v. United States Postal Service, EEOC Appeal
No. 01964367 (April 30, 1999).
Concerning complainant's allegations that the agency's actions in issues 6
and 7 created a hostile work environment, complainant complained that S1
issued a Letter of Instructions, which he successfully disputed through
a grievance procedure, and that S1 violated the grievance ruling by
discussing call-in with him on the phone. Complainant grieved what
appears to have been a novel question and it was resolved favorably
to complainant's position. S1's action in the issuance of the Letter
was appropriate and in accordance with agency policy at that time.
It does not appeared that S1 issued the Letter for purposes of harassing
complainant. S1's subsequent discussion of the call-in policy on the
phone with complainant, during which she immediately corrected herself,
appears to have been inadvertent, and was not sufficiently severe or
pervasive to affect complainant's work performance. Further, complainant
has not demonstrated that these actions were related to complainant's age,
sex, or in reprisal for prior EEO activity.
Finally, looking at issues 1 thorough 7 cumulatively, the evidence fails
to show that these actions are sufficiently severe or pervasive to create
discriminatory changes in complainant's work environment, or interfere
with the performance of complainant's duties. The agency's actions did
not create a hostile work environment, and were not reasonably likely
to deter complainant from engaging in protected activity.
The Commission concurs with the agency's determination that complainant
failed to establish a prima facie case of sex, age, and reprisal
discrimination.
CONCLUSIONS ON APPEAL
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
August 21, 2002
Date