01a00164
04-14-2000
Roy A. Shobert, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Roy A. Shobert, )
Complainant, )
) Appeal No. 01A00164
v. ) Agency No. 9V1M98426
)
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (�FAD�)
concerning his complaint of unlawful employment discrimination on the
basis of reprisal (prior EEO activity) in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1>
The appeal is accepted in accordance with EEOC Order No. 960.001.
ISSUE PRESENTED
The issue presented herein, is whether the complainant demonstrated by
a preponderance of the evidence, that the agency discriminated against
him on the basis of reprisal (prior EEO activity) when his supervisor
disciplined him for meeting with his EEO counselor without prior
approval.<2>
BACKGROUND
For the relevant period in question, complainant was employed by the
Department of the Air Force as an Aircraft Ordinance Systems Mechanic,
at Tinker Air Force Base. Complainant states that on August 7, 1998 at
approximately 8:00 am. he requested an hour of official time to complete
an EEO complaint and permission to attend a meeting with an EEO Counselor
at 1:00 pm that very same day. The request was denied by his first level
supervisor (hereinafter referred to as S1) due to the current workload.
However, at approximately 11:00 am., complainant states that again he
asked S1 for an hour of time to complete his EEO complainant and for
permission to attend a meeting with his EEO Counselor. According to
complainant, this request was granted.
Therefore, at 11:30 am, on August 7, 1998, complainant left his work
area to complete his complaint. Thereafter, he attended his meeting
with the EEO Counselor. Upon his return, complainant was confronted
by S1 who issued complainant a AF971 form accusing him of being AWOL
for .75 hours. Later, this was changed to reflect that prior to any
absence while on the job, complainant must officially log in and out.
According to S1, both times complainant approached him he only requested
time to complete his complaint and an hour was all that was granted.
S1 denies that complainant informed him or requested time to meet with
his EEO Counselor at 1:00 pm. on August 7, 1998. However, the record
indicates that at approximately 12:45 pm. when complainant did not return
for duty, S1 called the EEO office and he was informed that complainant
was currently in a meeting with his EEO Counselor.
Believing that he was discriminated against, on August 13, 1998,
complainant initiated contact with an EEO Counselor. During the
counseling period, complainant stated that S1 retaliated against him for
prior EEO activity when on August 7, 1998, he issued complainant a AF971
form disciplining and informing him that he must officially log in and out
when he leaves the work area during duty hours. Counseling failed, and
on September 9, 1998, complainant filed a formal complaint claiming that
he was the victim of unlawful employment discrimination on the basis of
reprisal (prior EEO activity). The formal complaint was comprised of the
matters for which complainant underwent EEO counseling, discussed above.
The agency accepted the above complaint, and thereafter, ordered an
investigation. The record indicates, that both the complainant and
his first level supervisor have different recollections as to what was
requested on August 7, 1998. During the investigation, complainant claimed
that S1 is absent minded, and recites an incident when after placing a
piece of paper down, he shortly thereafter, forgot its whereabouts.
On September 1, 1999, the agency issued a FAD finding no discrimination.
Specifically, the agency found that complainant did established a
prima facie case of reprisal discrimination, but the agency did in
fact articulate a legitimate nondiscriminatory reason for its actions,
which complainant did not prove, by the preponderance of the evidence,
to be a pretext masking discrimination on the basis of reprisal.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973). Complainant has the initial burden of
establishing a prima facie case of discrimination. McDonnell Douglas,
411 U.S. at 802. If complainant meets this burden, then the burden shifts
to the agency to articulate some legitimate, nondiscriminatory reason for
its challenged action. Texas Dep't of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). Complainant must then prove, by a preponderance
of the evidence, that the legitimate reason articulated by the agency
was not its true reason, but was pretext for discrimination. Id. at 256.
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas,
411 U.S. at 802). In general, complainant can establish a prima facie
case of reprisal, according to the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F.Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v.
Department of Veteran Affairs, EEOC Request No. 05960473 (November 20,
1997). Complainant
may establish a prima facie case of reprisal by showing that: (1) he
engaged in Title VII protected activity; (2) the agency was aware of
his protected activity; (3) subsequently, he was subjected to adverse
treatment by the agency; and (4) a nexus exists between the protected
activity and the adverse action.
Although the initial inquiry in a discrimination case usually focuses on
whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated
a legitimate nondiscriminatory reason for its actions. Washington
v. Department
of the Navy, EEOC Petition No. 0300056 (May 31, 1990). In such cases,
the inquiry shifts from whether the complainant has established a prima
facie case to whether he or she has demonstrated, by a preponderance of
the evidence, that the agency's reasons for its actions, were merely a
pretext for discrimination. Id.; See Also United States Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 714-17 (1983). Therefore,
in the present case, the Commission will by pass the prima facie stage
of the analysis and focus on whether the complainant has demonstrated,
by a preponderance of the evidence, that the agency's explanation for
its action, was a pretext for discrimination based on reprisal.
In the present case, the agency has articulated a legitimate
nondiscriminatory reason for its actions. Specifically, the agency has
stated that they disciplined complainant because he failed to inform his
supervisor that he was going to attend a meeting with an EEO counselor.
At this point, the complainant must demonstrate by a preponderance of the
evidence that the agency's explanation is a pretext for discrimination.
Shapiro, supra. Complainant can accomplish this by showing that a
discriminatory reason motivated the agency. Id. (Citing St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993)).
After a thorough review of the entire record, the Commission finds
that complainant has failed to meet his burden of establishing,
by a preponderance of the evidence, that the agency's reasons for his
discipline was a pretext masking reprisal discrimination. The Commission
notes, that complainant claims he informed his supervisor of his 1:00
pm meeting, however, this is only a assertion not supported by any
other evidence. Moreover, this assertion is rebutted by S1 who claims
that complainant did not inform him of the meeting.
We further find complainant's statement that S1 is absentminded and that
S1 was aware of the EEO meeting because he contacted complainant's
representative, to be unpersuasive.<3> Thus, the only relevant
evidence to consider are the statements made by both the complainant
and his supervisor. When considering the statements, it is clear that
complainant has not proven, by a preponderance of the evidence, that
the agency's explanation for its action is pretextual.
CONCLUSION
For the reason set forth herein, the Commission hereby AFFIRMS the final
decision of the agency finding no discrimination.
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:
April 14, 2000
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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________ ________________________
Date Equal Employment Assistant1 On 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 Commission notes, that the FAD has incorrectly included the basis
of gender in this complaint, despite the fact that only reprisal is
claimed in the formal complaint and EEO Counselor's Report. Therefore,
on appeal, the Commission will only consider the basis of reprisal in
deciding this case.
3The Commission notes, that complainant's statement that S1 was aware
of the EEO meeting because he contacted his representative is too
speculative. In fact, S1, could have simply called the representative
because complainant was suppose to be working on his complaint and it
is reasonable to assume that he may have been assisting complainant.