Robert E. Little, Complainant,v.Ann M. Veneman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionMar 31, 2000
01A33049 (E.E.O.C. Mar. 31, 2000)

01A33049

03-31-2000

Robert E. Little, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.


Robert E. Little v. Department of Agriculture

01A33049

March 31, 2004

.

Robert E. Little,

Complainant,

v.

Ann M. Veneman,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 01A33049

Agency No. ACR970980

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning his complaint 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. 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 Statistician, at the National Agricultural Statistical

Service (NASS), located in Jackson, Mississippi. Complainant sought

EEO counseling and subsequently filed a formal complaint on August 20,

1997, alleging that he was discriminated against on the basis of race

(Black) when on July 7, 1997, he was reassigned from the position of

Group Leader, Crops Section, to the newly created position of Leader

of the Publications Unit, and a white employee was reassigned into

his old position. Complainant alleged that the reassignment was the

culmination of a series of events which occurred between February 1995,

and July 7, 1997.

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 management articulated legitimate,

nondiscriminatory reasons for its action. The agency found that from

the time complainant arrived in the Jackson NASS office to July 1997,

there were five reorganizations in the office. The agency also found

that with regard to the reorganization of July 1997, when complainant

was reassigned, the office had been short one statistician for some time

and another was about to leave. The agency further found that in the

July 1997 reorganization, a new white statistician employee was made

head of the Estimates Section and complainant was made head of a newly

created unit called the Publications Section. The agency stated the

reorganization was in response to a staffing shortage and complainant's

performance problems. The agency also stated that complainant's problems

with his performance began in February 1996. Specifically, the agency

said that he seemed on several occasions to lack the ability to examine

and analyze data and to problem solve. Finally, the agency found that the

performance problems of complainant were a major consideration in how the

office was reorganized because with the arrival of the new statistician,

they had another senior statistician with whom to work.

Additionally, the agency found that complainant failed to establish

a prima facie case of a hostile work environment. Specifically,

the agency found that the record did not support a finding that the

incidents between February 1995 and July 1997 were motivated by racially

discriminatory animus. Complainant makes no new contentions on appeal.

The agency requests that we affirm its FAD.

ANALYSIS AND FINDINGS

In general, claims alleging disparate treatment are examined under the

tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973). A complainant must first 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 reason was a factor in the adverse employment action.

McDonnell Douglas Corp. v. Green, 411 U.S. at 802; Furnco Construction

Corp v. Waters, 438 U.S. 567 (1978). Next, the agency must articulate a

legitimate, nondiscriminatory reason for its action(s). Texas Department

of Community Affairs v. Burdine, 450 U.S. 248 (1981). After the

agency has offered the reason for its action, the burden returns to the

complainant to demonstrate, by a preponderance of the evidence, that the

agency's reason was pretextual, that is, it was not the true reason or

the action was influenced by legally impermissible criteria. Burdine,

450 U.S. at 253; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the

first step normally consists of determining the existence of a prima

facie case, need not be followed in all cases. Where the agency has

articulated a legitimate, nondiscriminatory reason for the personnel

action at issue, the factual inquiry can proceed directly to the third

step of the McDonnell Douglas analysis, the ultimate issue of whether

the complainant has shown by a preponderance of the evidence that the

agency's actions were motivated by discrimination. U.S. Postal Service

Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983).

Assuming arguendo, that complainant established a prima facie case of

discrimination based on his race, the Commission finds that the agency

has articulated legitimate, nondiscriminatory reasons for its actions.

Specifically, we find that complainant was reassigned in response to

a staffing shortage and due to complainant's performance problems.

The record reveals that complainant was reassigned because management

felt that complainant's strongest qualities were best used at the

Publications position.

The burden returns to complainant to establish that the agency's

explanation was a pretext for discrimination. Upon review, the Commission

finds that the complainant has failed to do so. Complainant has failed

to prove that the agency's explanations for his reassignment are unworthy

of belief and motivated by unlawful animus towards his race.

Based on the standards set forth in Harris v. Forklift Systems, Inc.,

510 U.S. 17 (1993), in order to prevail on a claim of harassment,

complainant must prove that: (1) he was subjected to harassment that

was sufficiently severe or pervasive to alter the terms or conditions

of employment and create an abusive or hostile work environment; and

(2) the harassment was based on his membership in a protected class.

See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on

Harris v. Forklift Systems, Inc., at 3, 6; Cobb v. Department of the

Treasury, EEOC Request No. 05970077 (March 13, 1997). Upon review

of complainant's allegations of hostile work environment, we agree

with the agency that complainant failed to establish a prima facie

case of harassment. Specifically, we find that challenged incidents,

taken together, were not sufficiently severe or pervasive to establish a

hostile work environment. We also find that the record does not support

a finding that the alleged incidents were based on complainant's race.

Therefore, after 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

March 31, 20004

__________________

Date