Richard J. Skarda, Complainant,v.Richard J. Danzig Secretary, Department of the Navy Agency.

Equal Employment Opportunity CommissionJan 5, 2000
01973461 (E.E.O.C. Jan. 5, 2000)

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.