01a41329
07-19-2005
Scott A. Ferguson, Complainant, v. Michael L. Dominguez, Acting Secretary, Department of the Air Force, Agency.
Scott A. Ferguson v. Department of the Air Force
01A41329
July 19, 2005
.
Scott A. Ferguson,
Complainant,
v.
Michael L. Dominguez,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A41329
Agency No. AR000030832
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 an Historian, GS-12 at the United States Air Force Museum,
Wright-Patterson Air Force Base, located in Ohio. Complainant sought
EEO counseling and subsequently filed a formal complaint on November 5,
2002, alleging that he was subjected to unlawful harassment in reprisal
for prior EEO activity when:
(1) on May 15, 2002, his supervisors denied his request for a key to
the Restoration Division (MUR);
on June 24, 2002, he received a new position description, but it only
allowed him to perform one element;
on July 25, 2002, his supervisor told him that the work he performed
on July 22, 2002, was unnecessary;
on August 20, 2002, his supervisor denied him one-and-a-half hours of
compensatory time;
on September 3, 2002, his supervisor told him that he was unproductive,
and spent too much time in MUR �camping out;�
on October 25, 2002, his supervisor told him not to answer an e-mail
that was addressed to him; and
on January 17, 2003, he received his performance review worksheet three
months late; and he was only allowed to perform one element of his
performance plan, even though he was to be rated on all of its elements.
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. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of reprisal regarding claims 1 to 5. Specifically,
the agency found that complainant's first contact with an EEO Counselor
was on July 26, 2002, but he did not initiate a pre-complaint process at
that time. The agency also found that upon his second contact with an EEO
Counselor on September 6, 2002, he initiated the pre-complaint process.
The agency further found that complainant's supervisor was not aware of
complainant's EEO complaint prior to September 6, 2002 and the alleged
incidents occurred prior September 6, 2002. Therefore, the agency
concluded that even if the alleged incidents were true there were not
motivated by complainant's EEO activity. Regarding claims 6 and 7,
the agency found that considering the totality of the circumstances,
even if the incidents occurred as complainant alleged, they were not
sufficiently severe or pervasive to create a hostile work environment.
On appeal, complainant contends, among other things, that he was subjected
to ongoing harassment since the spring of 2000. Specifically, complainant
contends that in spring 2000, his supervisor informed him that �he was
going to exchange a special military helicopter that they had received in
a remote location,� complainant stated that he was shocked and responded
that if his supervisor exchanged the helicopter he resign. Complainant
further contend that since that day, he was subjected to harassment by
his supervisor. Finally, complainant contends that although he did not
file his informal complaint until September 6, 2002, he did notify the
EEO office prior to September 2002 that he felt retaliated against and
requested reassignment from his supervisor. The agency requests that
we affirm its FAD.
ANALYSIS AND FINDINGS
As a initial matter we note that, as this is an appeal from a decision
issued by the agency without a hearing, pursuant to 29 C.F.R. �
1614.110(b), the agency's decision is subject to de novo review by
the Commission. 29 C.F.R. � 1614.405(a).
EEOC Regulation 29 C.F.R. � 1614.101(b) provides that no person shall
be subjected to retaliation for opposing any practice made unlawful by
Title VII of the Civil Rights Act (Title VII) (42 U.S.C.�2000e et seq.),
the Age Discrimination in Employment Act of 1967 (ADEA) (29 U.S.C.�
et seq.), the Equal Pay Act (29 U.S.C. �206(d)) or the Rehabilitation
Act (29 U.S.C. �791 et seq.) or for participating in any stage of
administrative or judicial proceedings under these statutes.
It is well-settled that harassment based on an individual's prior
EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson,
477 U.S. 57 (1986). In order to establish a claim of harassment
under this basis, the complainant must show that: (1) he engaged in
prior EEO activity; (2) he was subjected to unwelcome conduct; (3)
the harassment complained of was based on his prior EEO activity; (4)
the harassment had the purpose or effect of unreasonably interfering
with his work performance and/or creating an intimidating, hostile,
or offensive work environment; and (5) there is a basis for imputing
liability to the employer. The harasser's conduct should be evaluated
from the objective viewpoint of a reasonable person in the victim's
circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc.,
EEOC Notice No. 915.002 (March 8, 1994).
In the instant complaint, complainant alleges that he was subjected to
retaliatory harassment. Complainant enumerated series of incidents from
May 15,2002, through January 17, 2003. After review of the record, we
conclude that complainant provided no information regarding any prior EEO
complaints or other prior protected activity in which he had been involved
prior to September 6, 2002. Additionally, we note that complainant
complained of harassment based on an incident with his supervisor in
Spring 2002 that did not raise a protected basis and cannot give rise to
an actionable claim of reprisal under the Commission statutes. We find
that the record contains no evidence showing that complainant engaged
in any prior protected activity, and complainant does not contend so.
Further, the Commission is not persuaded that complainant was subjected
to reprisal for filing the instant complaint when the alleged incidents
occurred before complainant began the pre-complaint process. Accordingly,
we conclude that complainant failed to establish a prima facie case of
retaliatory harassment in claims 1 to 5 because he failed to show that
he engaged in prior EEO activity before those incidents.
With regard to complainant's claims 6 and 7, we find that the discrete
incidents complained of follow complainant's EEO activity in a time
frame to permit a rebuttable presumption of retaliation. We therefore
initially review those incidents in the context of disparate treatment.
Specifically, complainant alleged that he was discriminated against based
in retaliation for filing the instant complaint when: (1) on October 25,
2002, his supervisor told him not to answer an e-mail that was addressed
to him; and (2) on January 17, 2003, he received his performance review
three months late, and he was allowed to perform one element of his
performance plan. After a careful review of the record, based on the
standards set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), and assuming that complainant established a prima facie case of
discrimination on the basis alleged, we find that the agency provided
legitimate nondiscriminatory reasons for its actions. We find that
the e-mail was from someone with whom complainant's supervisor and all
the Division Chiefs had been in contact regarding items to be acquired
for or donated to the museum. The record reveals that complainant was
directed not to respond because he was not in the Collection Division
anymore. In addition, we find that complainant's Civilian Progress
Review Worksheet, was not a rating of record. Specifically, we find
that the document's purpose is to provide feedback to employees about
their performance that may impact their rating of record at the end
of the appraisal period. The record further reveals that the document
described complainant's performance as �satisfactory� and �adequate.�
There is no evidence to establish that management's explanations are
unworthy of belief or a pretext for unlawful discrimination.
With regard to complainant's claim that these discrete acts constituted
harassment, we find the incidents raised by complainant involve
managerial decisions that were not sufficiently severe or pervasive
to create a hostile work environment. See Harris v. Forklift Systems,
Inc., 510 U.S 17, 21 (1993); EEOC Notice No. 915.002 (March 8, 1994),
Enforcement Guidance on Harris v. Forklift Systems, Inc., at 3, 6.
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
__________________
Date
July 19, 2005