Weldon W. Woodward, Complainant,v.Paul H. O'Neill, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionDec 3, 2002
01A14530 (E.E.O.C. Dec. 3, 2002)

01A14530

12-03-2002

Weldon W. Woodward, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.


Weldon W. Woodward v. Department of the Treasury

01A14530

December 3, 2002

.

Weldon W. Woodward,

Complainant,

v.

Paul H. O'Neill,

Secretary,

Department of the Treasury,

Agency.

Appeal No. 01A14530

Agency No. 00-4148 & 00-4160

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 Tax Examining Assistant at the agency's Kansas City Service Center,

Kansas City, Missouri facility. Complainant sought EEO counseling and

subsequently filed formal complaints on February 29, 2000, and on March

15, 2000 alleging that he was discriminated against on the basis of

reprisal for prior EEO activity when:

(1) he was denied 3 hours of Administrative Leave on November 23, 1999;

(2) his service computation date was changed;

(3) he was given an unfair performance appraisal on February 11, 2000.<1>

All procedural requirements were followed and complainant requested that

the agency issue a final decision.

In its final decision, the agency concluded that complainant stated

a prima facie case of reprisal in that he had previously filed EEO

complaints, his Group Manager (GM) and Branch Chief (BC) were aware

of his protected activity and the actions complained of were arguably

adverse. The agency further found that because complainant had ongoing

EEO activity at the time of the adverse actions, he established a causal

connection sufficient to infer a discriminatory motive based on reprisal.

The agency concluded, however, that it had legitimate non-discriminatory

reasons for taking the actions in question and that there was no proof

of discrimination by a preponderance of the evidence.

On appeal, complainant apparently raises issues that were not part of

his formal complaints but that have been raised in another complaint.<2>

The agency requests that we affirm its FAD.

ANALYSIS AND FINDINGS

To prevail in a disparate treatment claim such as this, complainant

must satisfy the three-part evidentiary scheme fashioned by the

Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

The prima facie inquiry may be dispensed with in this case, however,

since the agency has articulated legitimate and nondiscriminatory

reasons for its conduct. See United States Postal Service Board of

Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department

of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997).

To ultimately prevail, complainant must prove, by a preponderance of the

evidence, that the agency's explanation is a pretext for discrimination.

Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097

(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas

Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981);

Holley v. Department of Veterans Affairs, EEOC Request No. 05950842

(November 13, 1997); Pavelka v. Department of the Navy, EEOC Request

No. 05950351 (December 14, 1995).

In addition, a complainant may establish a prima facie case of reprisal

by showing that: (1) he engaged in a protected activity; (2) the agency

was aware of the 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 treatment. 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) Whitmire

v. Department of the Air Force, EEOC Appeal No. 01A00340 (September

25, 2000).

Based on these principles, the Commission concludes that the agency stated

legitimate non-discriminatory reasons for each of the actions at issue and

that complainant failed to demonstrate the explanations were a pretext

for discrimination. Specifically, GM stated that complainant requested

administrative leave related to the presence of noxious odors in the

workplace on November 23, 1999. GM stated she consulted with the building

manager and the union before a decision was made to grant break time or an

early lunch break. She further stated that no other employees requested

administrative leave or other types of leave related to the incident.

Complainant requested and was granted sick leave. She acknowledged that

higher management officials denied his request for administrative leave.

Complainant did not establish that GM or other managers had a retaliatory

motive when his request for administrative leave was denied and we

conclude there was no discrimination as to this issue.

Complainant alleged reprisal when he received a notice from the personnel

office that his service computation date was changed to reflect a break

in service from April 1991 to June 1991. The record reflects that

complainant was reinstated pursuant to a Settlement Agreement of an EEO

claim which established the date of June 1991 for his reinstatement.

To the extent that complainant alleges a breach of the settlement

agreement on a separate issue from that involved herein, complainant

must notify the agency of such in accordance with 29 C.F.R. �1614.504.

Since the record does not indicate that complainant has notified the

agency according to this regulation, this decision will not address an

alleged breach of that agreement.

Additionally, complainant has not demonstrated that any of his managers

were responsible for the change in his service computation date.

The record supports that the agency engaged in a review of all Official

Personnel Files during the time in question and adjusted complainant's

record to reflect a two month break in service. Complainant did not

establish that there was a discriminatory motive involved in the agency's

action or that the agency's explanation was a pretext for reprisal.

Therefore, we conclude that there was no discrimination with respect to

this issue.

Lastly, complainant alleged that his performance appraisal for the

period of December 1, 1998 to December 20, 1999 was lower in the

elements of �quantity and quality� than his previous rating and that

he was not informed about the application of a learning curve to GM's

rating or that the performance period would be extended. GM stated

that the performance period was extended due to the brief time that

complainant was in her group. She further stated that employees are not

rated for the time period they are on a learning curve in a new job and

that complainant did not have enough time after completing his training

period to be fully rated on measured elements.

The record also reflects that complainant's job elements changed from

his previous appraisal to the time of his mid-year review and that

he was rated �Exceeds Fully Successful�. Consequently, complainant

was not rated in the elements of quantity and quality in his previous

performance appraisal. His overall rating did not change from his

previous appraisal. In addition, the concept of a learning curve

appeared to benefit complainant because he was not held to the same

standard as others who were not new to the job as he. As a result, he

was only rated for the time he worked outside of the training period.

Based on these facts, we cannot conclude that complainant was treated

less favorably than others outside of his protected group or that he

was subjected to discrimination based on reprisal.

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 final decision.

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

December 3, 2002

__________________

Date

1The agency dismissed a number of claims

which were resolved during Alternative Dispute Resolution (ADR) and

one which duplicated a claim previously raised in another complaint.

Complainant did not contest any of these dismissals and as such, they

are not addressed in this decision.

2Complainant raised an issue regarding a Do Not Rehire Order issued in

July 2000 which is not related to the instant appeal but is the subject

of a separate appeal and will be discussed in a separate decision.