01A11130
07-29-2002
Richard L. Estes, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Richard L. Estes v. Department of the Air Force
01A11130
July 29, 2002
.
Richard L. Estes,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A11130
Agency No. AL900010132
Hearing No. 360-99-8553X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's final order in the above-entitled matter.
Complainant alleged that the agency discriminated against him as
referenced below in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq., the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.,
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq.<1> Specifically, complainant alleged
that he was discriminated against when:
on the bases of his sex (male), age (D.O.B.: December 11, 1942), race
(Caucasian), national origin (German), disability (diabetes), reprisal
(prior EEO activity protected by unspecified statute) he was informed
that his function would be moving to Building 990 on January 28,
1998; and
on the bases of his sex, age, and reprisal he was constructively
discharged on February 28, 1998, by the following acts:
in late December 1997, one of his subordinates (SE) did not complete
a task that she was responsible for accomplishing;
in late December 1997, he learned at a staff meeting that his section
(Records Management) would be placed under the Security Section within
the organization; and
on or about January 12, 1998, the Weekly Activity Report stated that
a subordinate position would be removed from his supervision.
Complainant filed two formal complainants of discrimination on April
13, 1998. The agency consolidated the complaints for investigation and,
following the investigation, complainant requested a hearing by an EEOC
Administrative Judge. The Administrative Judge issued written findings
wherein she concluded that complainant failed to establish discrimination
on any of his proffered bases. On October 31, 2000, the agency issued
its Final Order, fully implementing the Administrative Judge's decision.
This appeal followed.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings
by an Administrative Judge 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 Administrative Judge's conclusions of law are subject to a de novo
standard of review, whether or not a hearing was held. For the purpose
of this decision we have assumed without finding that complainant is an
individual with a disability under the Rehabilitation Act.
Disparate Treatment
To prevail in a disparate treatment claim 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).
In this case, the agency has articulated legitimate nondiscriminatory
reasons for its actions. Specifically, the agency asserts that it moved
complainant's duty location in order to consolidate, in one facility,
the entire organizational component. By consolidating its operations,
agency leadership hoped to provide better customer service and more
closely monitor the performance of subordinate employees. The move
also made much-needed office space available for another organizational
component of the agency. Having articulated a nondiscriminatory reason
for complainant's move to Building 990, the burden is now on complainant
to establish that the agency's reasons are pretexts for discrimination.
In this regard complainant suggests that the move to Building 990
was not necessary. Complainant suggests that the agency could have
continued its operations from its former location. Complainant's
arguments are misplaced. The agency does not rely on the argument that
the move to Building 990 was absolutely essential. Rather, the agency
contends that the relocation to Building 990 furthered its legitimate
and nondiscriminatory goals of improving efficiency and supervision.
Complainant has failed to establish that these reasons are a pretext
for discrimination. In so finding, we affirm the Administrative Judge's
finding of no discrimination with respect to (1) above.
Harassment
At issue in the second aspect of complainant's claim is whether
or not the agency constructively discharged complainant through a
pattern of harassment. Harassment of an employee that would not
occur but for the employee's race, color, sex, national origin, age,
disability, or religion 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 of Title VII
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).
Essentially, complainant argues that management made his job impossible by
not giving him enough personnel to carry out his job function. The record
reveals that the agency transferred SE, one of complainant's subordinate
staff members, in settlement of an EEO complaint filed by SE naming
complainant as one of two responsible officials. Complainant also points
out that the agency promoted a subordinate employee out of his supervision
and, as a result of an agency-wide hiring freeze, not replaced. As a
result of these events and the specific incidents referenced above (A,
B, C), complainant believes that he was constructively discharged.
We recognize the Administrative Judge's indication that complainant
felt that his work environment was intolerable. However, to prevail,
complainant must offer some evidence that the agency's actions were
motivated by his membership in one of more of his protected classes.
Since complainant has failed to produce evidence that the agency subjected
him to intolerable conditions because of his sex, age, or prior EEO
activity, we affirm the Administrative Judge's conclusion that complainant
was not constructively discharged. See Gonzalez v. Transportation, EEOC
Appeal No. 01A10391 (June 26, 2002) (constructive discharge claim fails
where intolerable working conditions did not result from discrimination).
Therefore, after a review of the record in its entirety, including
consideration of all statements submitted on appeal, it is the decision
of the Equal Employment Opportunity Commission to affirm the final agency
order because the Administrative Judge's ultimate finding, following
a hearing, that unlawful employment discrimination was not proven by a
preponderance of the evidence, is supported by the record.
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
July 29, 2002
__________________
Date
1 The Rehabilitation Act was amended in 1992
to apply the standards of the Americans with Disabilities Act (ADA)
to complaints of discrimination by federal employees or applicants
for employment.