01A04156
08-23-2002
Ross A. Carter, Complainant, v. Alan Greenspan, Chairman, Federal Reserve System, Agency.
Ross A. Carter v. Federal Reserve System
01A04156
08-23-02
.
Ross A. Carter,
Complainant,
v.
Alan Greenspan,
Chairman,
Federal Reserve System,
Agency.
Appeal No. 01A04156
Agency No. FRB-EEO-99-06-008
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 Payroll Specialist on a probationary basis in the Finance area of
the agency's Management Division in Washington, D.C. During an oral
counseling session conducted on March 29, 1999, complainant was informed
that his conduct and work performance had not been satisfactory and that
he would be terminated if he did not improve. After being so informed,
complainant told management for the first time that he was being harassed
by a female co-worker (C-1).
Complainant claimed that on three separate occasions, C-1 caressed his
knee, placed her chest on his arm, �pinning� it to his desk, and touched
his buttocks with her hand while they were inside their supervisor's
office. Management convened separate meetings on March 30, and 31, 1999,
to investigate complainant's claims of harassment. During the meetings
complainant indicated that he confronted C-1 on incidents 1 and 3, but
not incident 2. In incident 1, C-1 indicated that she used a quick
hand gesture to prevent complainant from selecting an inappropriate
field on the software program complainant was being trained on, and
that there was no intent to harass complainant. C-1 denied that the
other two incidents occurred, and their mutual supervisor averred that
he was in his office at the time of the third incident and did not see
any physical contact between complainant and C-1. In instances 1 and
3, C-1 suggested that they seek to have the matter resolved by their
supervisor, an offer complainant refused.<1> Management determined
that the incidents complainant described were not sufficiently severe or
pervasive as to rise to the level of a hostile work environment. At the
conclusion of management's investigation of complainant's harassment
claim, complainant was asked if he was satisfied with how the matter was
resolved. Complainant indicated that he was and that the matter would be
dropped. Complainant was terminated on May 15, 1999. Complainant sought
EEO counseling and subsequently filed a formal complaint on June 20, 1999,
alleging that he was discriminated against on the bases of sex (male)
and reprisal (prior EEO activity) when he was terminated after claiming
that he was harassed by C-1. At the conclusion of the EEO 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 did not request a hearing, and on April 11,
2000, the agency issue its final decision.
In its FAD, the agency concluded that complainant was terminated for
reasons unrelated to the fact that he raised a sexual harassment claim.
Specifically, complainant was terminated because since being hired on
December 21, 1998, complainant had difficulty working in close proximity
with other team members, was very �standoffish,� expressed a desire to
only be trained by certain people, delineated an unusual zone of privacy
which, in practice, meant that people not enter his office, and took a
significant amount of unscheduled, and often unearned leave. The agency
investigated complainant's claim of sexual harassment and found that
it was untimely filed and dismissed the claim. The agency also found,
in the alternative, that the incidents complainant described were not
sufficiently severe or pervasive to constitute actionable harassment
under Title VII, in that C-1 vigorously denied touching complainant
inappropriately. Further, C-1's denial was supported by S-2 who was
present at the time the third incident allegedly occurred. The agency
also found that complainant was extremely sensitive to physical contact,
and that this suggested that whatever contact occurred between complainant
and C-1 was misperceived by complainant as hostile or sexual in nature.
The agency also found that assuming arguendo that complainant
established a prima facie case of reprisal, it articulated legitimate
non-discriminatory reasons for its actions, in that, management intended
to terminate complainant prior to its meeting with complainant and
his subsequent claims of harassment on March 29, 1999. Specifically,
management had counseled complainant regarding his absences and behavioral
issues, and had met with the agency's Labor Relations Specialist on March
24, 1999, regarding its dissatisfaction with complainant's performance.
Further, complainant's conduct did not improve even after he was
counseled.
On appeal, complainant contends that the agency's reasons for his
termination were pretextual because the Associate Director of Human
Resources indicated that complainant's attendance did not carry a lot
of weight in the final termination decision, he was not given a fair
opportunity to improve his work performance and that his female co-workers
were �distant� toward him. The agency requests that we affirm its FAD.
After a careful review of the record, the decision of the agency should
be affirmed. The agency correctly analyzed the case, and there is no
evidence submitted by complainant that would show that his termination
was motivated by either his sex or reprisal.
In regards to complainant's contentions on appeal, we note that while
the Associate Director of Human Resources indicated that complainant's
attendance in and of itself was insufficient to warrant termination, his
attendance, in addition to his unsatisfactory conduct and performance
were sufficient grounds warranting termination. As for complainant's
contention that he was not given a fair opportunity to improve, management
indicated that after the March 29, 1999, counseling, complainant was
still unwilling to change, and that he came to work and closed his door
and would not communicate with anyone other than S-2. Further, while
complainant indicated that his female co-workers did not want to work
with him, the record showed that any reluctance they felt toward working
with complainant stemmed from his unease in working with them. There is
some evidence that this reluctance increased after complainant claimed
that he was sexually harassed by C-1; however, there is no evidence that
his co-workers interfered with complainant's ability to do his work.
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 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
___08-23-02_______________
Date
1After the third incident, C-1 actually went to her manager and complained
about complainant's accusations.