Roy A. Shobert, Complainant,v.F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionApr 14, 2000
01a00164 (E.E.O.C. Apr. 14, 2000)

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.