01a44341
08-04-2005
Roland Patrick, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Roland Patrick v. Department of Defense
01A44341
August 4, 2005
.
Roland Patrick,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 01A44341
Agency No. JQ-00-77
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.
Complainant was employed as a Materials Handler, WG-6907-06, at
the agency's Defense Distribution Depot in Oklahoma City, Oklahoma
(DDOO). Complainant filed two formal complaints on July 25, 2000 and
August 22, 2000, respectively. Therein, complainant claimed that he
was discriminated against on the basis of race (African-American).
Complainant's complaints were comprised of the following claims:
(1) on June 6, 2000, his supervisor reassigned him to work in another
area without providing him training on his new duty responsibilities; and
(2) on August 10, 2000, his supervisor used profanity toward him when
he directed him to perform a work assignment.
On September 7, 2000, complainant filed a third complaint. Therein,
complainant claimed that he was discriminated against in reprisal for
prior EEO activity when:
(3) his supervisor closely monitored his whereabouts; limited his use
of the telephone; and threatened to force him to abstain from receiving
calls on his personal cellular telephone.<1>
By letter dated September 19, 2000, the agency informed complainant that
his third complaint was declared as an amendment to his previously filed
complaints and accepted claim (3) for investigation. All three claims
were identified under the captioned agency number.
The agency consolidated complainant's two complaints and amended claim,
and conducted an investigation. 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 FAD by the
agency. Complainant initially requested a hearing before the AJ, but
later withdrew that request and requested that the agency issue a FAD.
In its March 12, 2004 FAD, the agency found that assuming complainant
established a prima facie case of race and reprisal discrimination,
management articulated legitimate, nondiscriminatory reasons which
complainant failed to show were pretextual.
As to complainant's harassment claim, the agency concluded that
complainant failed to prove that he was subjected to harassment
sufficiently severe or pervasive so as to render his work environment
hostile.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, she 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 consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See 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
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Regarding claim (1), complainant's Supervisor stated that prior to May
2000, the Branch Chief needed several employees to work in another section
within the branch on a temporary basis. Specifically, the Supervisor
stated that the Branch Chief requested that he and two other supervisors
ask for volunteers to work as Motor Vehicle Operators, not to exceed
29 days. The Supervisor stated that complainant "did volunteer for
the detail." The Supervisor stated that prior to complainant's detail,
complainant was one of the three to four employees that worked under
his supervision at the South 40 facility; and that the volume of work
at the South 40 facility had declined to the point where he felt that
two employees could effectively handle the work load. The Supervisor
stated that when complainant's detail ended, he made a determination to
move complainant to Building 18 "where a workload increase appeared due
to the recent loss of two workers."
The Supervisor also stated that two separate incidents involving
complainant precipitated the Supervisor's action in assigning
complainant to Building 18, where he could be more closely supervised.
Specifically, the Supervisor stated that in March 2000, an investigator
was at South 40 facility performing an official investigation concerning
U-42 area for the command. The Supervisor stated that because a named
employee at South 40 facility was unable to answer the investigator's
questions, he referred her to complainant. The Supervisor stated that
the investigator identified herself to complainant but that complainant
refused to give her his name or help her. The Supervisor stated that in
May 2000, three employees reported to him that complainant had verbally
assaulted them "using a string of expletives." The Supervisor stated
that he provided training for complainant with a named employee,
and that complainant now "satisfactorily completes all functions of
the job." Furthermore, the Supervisor stated that while he was aware
of complainant's prior EEO activity, he did not discriminate against
complainant.
The record that the Branch Chief stated that he approved the Supervisor's
decision to have complainant reassigned to Building 18. The Branch Chief
further stated that the Supervisor felt that two employees could handle
the work load at the South 40 facility. The Branch Chief stated that he
learned through other employees and the Supervisor that complainant was
assigned to "On the Job Training" with a named employee. The Branch
Chief also stated that the Supervisor assigned another employee to
train complainant but that it was not successful because complainant
"was not cooperative." The Branch Chief stated that during the relevant
time period, he and the Supervisor met with complainant at his request,
and that complainant "became loud, obnoxious and uncooperative."
Furthermore, the Branch Chief stated that "after about 20 minutes of
[Complainant] not being able to tell me what I could do to help him,
I ended the meeting and instructed [Complainant] to go back to work."
Regarding claim (2), the Supervisor denied using profanity towards
complainant on August 10, 2000. The Supervisor further stated that two
other employees provided written statements verifying that that he did
not use profanity towards complainant.
Regarding claim (3), the Supervisor stated he does not monitor the
whereabouts or telephone usage of complainant anymore than he monitors
the activities of other employees. The Supervisor further stated
that whenever he is on the work floor, and "observe that an employee
is not there, I do inquire of the work leader where the employee is."
The Supervisor stated that each area has a sign-out book "should the work
leader not be available and the employee finds it necessary to leave the
work floor." The Supervisor stated that on several occasions, he asked
the whereabouts of three other named employees. The Supervisor stated
that he had spoken to his entire workforce in Building 18 concerning
limiting telephone usage. The Supervisor stated that he did not threaten
to force complainant from receiving calls on his personal cellular
telephone. The Supervisor stated that on one occasion, when he went
to Building 18 to check on housekeeping and do an inventory workload,
he noted that complainant was not on the work floor. The Supervisor
stated that he found complainant outside talking on his personal cellular
telephone. The Supervisor stated that complainant "did not appear to be
in an emergency type conversation but was sitting in the shade with his
foot propped up and was smiling." The Supervisor stated that he informed
complainant that there were two numbers of the work floor where employees
could be reached in case of emergency. Furthermore, the Supervisor stated
"I have not found it necessary to address the use of a cell phone with
[Complainant] subsequent to this incident."
The record reflects that the Branch Chief stated that "on various
occasions I have been driving by Building 18 and observed [Complainant]
outside Building 18, both the north end and the west side, with the
cell phone to his ear." The Branch Chief stated that the agency was
making attempts to draft a policy that would limit the use of personal
cellular telephones during work hours because it had become an issue.
Furthermore, the Branch Chief stated that while the agency has a policy
which states that telephone usage are only to be used for official
government business or in the case of emergency, management "does not
tolerate short, personal telephone calls."
As discussed above, the Commission determines that the agency articulated
legitimate, non-discriminatory reasons for its actions regarding claims
(1) - (3). Moreover, we determine that complainant has not demonstrated
that the agency's articulated reasons for its actions were a pretext
for discrimination.
Moreover, upon review of the record, we find that the environment created
within complainant's workplace was not sufficient to show a hostile work
environment due to his race and prior protected activity. Therefore,
we conclude that complainant failed to establish his claim of unlawful
discrimination due to harassment.
Accordingly, the agency's decision finding no discrimination on the
consolidated complaints and amended claim is AFFIRMED.
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 4, 2005
__________________
Date
1For ease of reference, the Commission has numbered complainant's
amended claim as claim (3).