01973461
01-05-2000
Richard J. Skarda, Complainant, v. Richard J. Danzig Secretary, Department of the Navy Agency.
Richard J. Skarda v. Department of the Navy
01973461
January 5, 2000
Richard J. Skarda, )
Complainant, )
) Appeal No. 01973461
v. ) Agency No. DON 94-66099-002
)
Richard J. Danzig )
Secretary, )
Department of the Navy )
Agency. )
)
______________________________)
DECISION
Complainant timely initiated an appeal of a final agency decision
(FAD) on his complaint which found no discrimination on the bases of
sex (male), reprisal (prior EEO activity) and age (DOB 1/2/52).<1>
Complainant alleged he was discriminated against when his clinical
privileges were suspended and then revoked 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. The appeal is accepted in accordance with EEOC
Order No. 960.001. For the following reasons, the agency's decision
is AFFIRMED.
As relevant background, the record reveals that complainant was employed
as a Social Worker GS-185-11, at the agency's Family Advocacy/Social Work
Department, Naval Medical Clinic, Port Mugu, California. He was directly
supervised by the Chief, Ancillary Services at the Naval Medical Clinic.
The agency suspended complainant's and another social worker's social
work privileges in 1993 after a site visit to the family advocacy
clinic exposed some deficiencies. The agency later revoked his and
the subordinate social worker's supplemental family advocacy privileges
after a peer review panel upheld some of the initial findings.
Believing he was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint on April 7, 1994. At the
conclusion of the investigation, complainant requested that the agency
issue a final agency decision.
In its final decision, the agency concluded that complainant failed to
meet his burden of proof of establishing a prima facie case of sex and
age discrimination. That is, he failed to present evidence that similarly
situated individuals not in his protected age and sex classifications
were treated more favorably under like circumstances.
The agency also concluded complainant failed to establish that the
responsible management officials knew about his protected activity before
taking the adverse actions at issue. As a result, the agency concluded
it had not retaliated against complainant in revoking his supplemental
privileges.
After a careful review of the record, based on the analysis set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), Texas Department
of Community Affairs v. Burdine, 450 U.S.248 (1981); United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, (1983)
and Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to retaliation cases), the Commission agrees
with the agency that complainant failed to establish a prima facie case
of age, sex or reprisal discrimination. The record before us fails to
identify any other female supervisory social workers who were treated more
favorably than complainant. Rather, complainant focused his argument of
sex discrimination on the fact that the persons issuing the discipline
against him were mostly female. While this is relevant, it is not
decisive in and of itself. See, Kalivretenos v. United States Postal
Service, EEOC Request No. 05890884 (October 13, 1989); Pritchard v. United
States Postal Service, EEOC Request No. 05880261 (July 19, 1988); Wright
v. United States Postal Service, EEOC Request No. 05870622 (May 6, 1988);
Jackson v. Department of the Navy, EEOC Request No. 05880091 (June 22,
1988). Nor does complainant identify any other evidence sufficient from
which to draw an inference of discrimination.
Even assuming complainant established a prima facie case, complainant's
claim of sex discrimination was refuted by the fact that a female
employee also employed as a social worker GS-11, was subjected to
the same disciplinary actions and at the same time as complainant.
Although this employee was not completely parallel because she was
subordinate to complainant, the record reflects that she performed
the same job function, worked on the same tour, and was disciplined
during roughly the same time period for many of the same infractions.
Thus the comparison in treatment between the two employees was highly
relevant on the issue of sex discrimination.
Complainant failed in the same respect on his claim of age discrimination
- that is, he failed to identify any younger employees who were treated
more favorably than he was when disciplined. Complainant has the duty
to present at least a colorable claim of discrimination by identifying
younger employee(s) who were treated with more favor under the same
circumstances. The record evidence of the ages of other supervisory and
non-supervisory employees involved in either issuing or recommending the
discipline at issue, reveals that these employees were all older than
complainant. Given this evidence and the absence of evidence tending
to implicate age as a factor in the decision to revoke complainant's
privileges, we cannot conclude that age discrimination occurred. See,
Loeb v. Textron, Inc. 600 F2d. 1003 (1st Cir. 1979).
In our consideration of complainant's claim of reprisal, complainant
fails to prove a crucial element of his prima facie case. See, Milder v.
Veterans' Administration, EEOC No. 01971724 (January 15, 1999).
Complainant attempted to establish that he engaged in protected EEO
activity by asserting that he "supported" the female social worker in her
prior EEO case. Our review of the record, however, leaves us unconvinced
that complainant did anything tangible which would constitute protected
activity.
While the record establishes that the female social worker filed an EEO
complaint to protest an evaluation which rated her work as "exceed[ing]
expectations", rather than outstanding, the record does not indicate how
complainant supported this worker's EEO claims. The record reveals that
complainant had rated his subordinate as outstanding before her second
line supervisor reduced it. The record also shows that the Executive
Officer and Commanding Officer decided to raise the evaluation to
outstanding because the worker had not been properly counseled as to
her performance problems. Aside from this information, complainant
fails to relate what he did, specifically, which may have constituted
protected activity.
In addition, the record does not reflect that any of the individuals
involved in reviewing complainant's work through the peer review panel,
the audit or the site visit were aware of any EEO activity on his
part.<2> This is significant because these individuals were responsible
for the negative findings leading to the suspension and revocation
of complainant's privileges. Their lack of knowledge of his alleged
EEO activity dispels any inference that the discipline was motivated
by reprisal.
Lastly, complainant fails to adequately show a causal connection
between his alleged EEO activity and the adverse employment action
taken against him. See Milder v. Veterans' Administration, EEOC No.
01971724 (January 15, 1999). Usually, this can be established by the
close proximity in time of the two events. In this case, complainant's
purported EEO activity took place sometime around September 1991,
when complainant's subordinate employee filed her EEO complaint.
Complainant's initial suspension occurred in September 1993 and the
revocation of his privileges took place in 1994. The lapse in time
between the two events of approximately two years is a long enough period
of time to raise significant doubts about a causal connection.
CONCLUSION
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 decision.
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:
01/5/00
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:
___________________________
Equal Employment Assistant
__________________________
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.
2The affidavits of these individuals in this case did not contain
statements on the issue of reprisal but were contained in the record
developed in the female social worker's case. Ybarra v. Department of
the Navy, EEOC No. 01973905 (May 14, 1999). We infer their lack of
knowledge of the female social worker's EEO case filing as persuasive
of their lack of knowledge of any EEO activity of complainant allegedly
"supporting" her claim. The administrative judge in Ybarra found no
reprisal discrimination.