0120081320
08-27-2009
William H. Tschappat, Complainant, v. Hilda L. Solis, Secretary, Department of Labor (Occupational Safety and Health Administration), Agency.
William H. Tschappat,
Complainant,
v.
Hilda L. Solis,
Secretary,
Department of Labor
(Occupational Safety and Health Administration),
Agency.
Appeal No. 0120081320
Hearing No. 440-2007-00182X
Agency No. CRC-06-05-097
DECISION
On January 15, 2008, complainant filed an appeal from the agency's
December 12, 2007 final decision concerning his equal employment
opportunity (EEO) complaint alleging employment discrimination in
violation of the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final decision.
ISSUES PRESENTED
1. Whether the agency properly dismissed complainant's claim that it
discriminated against him in reprisal for prior EEO activity when it
removed him from the Most Efficient Organization (MEO) group.
2. Whether the final agency decision properly found that the agency did
not discriminate against complainant in reprisal for prior EEO activity
when it changed his position and duties.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a safety and occupational health specialist, GS-13, at the agency's
Occupational Safety and Health Administration's Office of Training and
Education (OTE) facility in Arlington Heights, Illinois.
The record reveals that the Director of OTE formed a team compromised
of two managers, two employees, and a union observer to evaluate the job
functions of existing OTE positions and create a MEO that would develop
and submit the agency's bid for competition. The MEO Team determined
the positions needed to perform the work of the MEO and concluded that
the functions of the MEO could be performed with 32 positions, instead
of the then-existing 37 positions. The MEO won the bid, and the Director
determined which employees would be assigned to MEO positions.
On April 27, 2006, the Director issued a memorandum to employees
announcing a mandatory meeting on April 28, 2006 to discuss the
restructured OTE. Attached to the memorandum was an organizational chart
that showed where all employees would be assigned in the restructured
organization. At the April 28, 2006 meeting, all employees were given
copies of position descriptions for their new assignments. Prior to the
competition, complainant worked as an instructor in the Construction
Branch of the Training Institute (OTI), but after the restructuring,
he was assigned to work as a Safety and Occupational Health Specialist
on the newly created Training Support Team, a non-MEO position. In that
new non-MEO position, complainant also worked as a course developer for
the Training Support Team.
On June 13, 2006, complainant sought EEO counseling, and on August
2, 2006, complainant filed an EEO complaint alleging that he was
discriminated against in reprisal for prior protected EEO activity under
the ADEA when the agency removed him from the MEO group and changed his
position and work duties.
In an investigative affidavit, the Director of the Office of Training
and Education stated that his Office was selected to go through the
competitive sourcing process by the Department of Labor's Competitive
Sourcing Office. The Director stated that 37 positions within the
Office of Training and Education were included in the competition.
He stated that the agency formed a MEO Team comprised of two managers,
two employees, and a union observer that developed the agency's bid
for this competition. The Director stated that the Team's goal was to
create the most efficient organization that could perform all of the
critical tasks and be competitive with outside organizations that may
bid to perform the functions of the Office. The Director stated that
the MEO Team recommended an MEO that consisted of 32 full time positions
to the Agency Tender Official (ATO), who was the deciding official.
The Director further stated that after the ATO informed him that the
Office's MEO had won the competition, he determined which employees would
be placed in which positions. He stated that the MEO Team recommended
that only five instructor positions were needed in the OTI Construction
Branch, but there were six instructors in the OTI Construction Branch,
including complainant. The Director stated that complainant was
assigned to his new position outside MEO because he believed reassigning
complainant would be of most value to the organization. The Director
stated that complainant was "an average instructor, who repeatedly
rebuffed management's attempts to improve his instructing abilities by
claiming that it was not his teaching but rather that the students did
not want to learn that resulted in students' frequent negative comments
about [complainant] as an instructor." Tab F1, p. 4.
The Director stated that after complainant was informed that he was
reassigned out of MEO, he was told that he could apply for any of three
vacant GS-13 instructor positions in the Office of Training and Education.
He stated that complainant applied for two MEO instructor positions but
declined interviews for the positions.
The Director stated that the primary difference in complainant's new
position and his previous position is that his current position chiefly
involves course development functions, whereas complainant's prior
position focused on instructing. He stated that with the implementation
of MEO, all position descriptions within the Office were rewritten, and
virtually every employee received new or different duties. The Director
stated that in addition to complainant, four other OTE employees were
also not placed in an MEO position.
The Director further stated that complainant was reassigned to work
as a Safety and Occupational Health Specialist on the newly created
Training Support Team because he is very knowledgeable about construction
standards and demonstrated his ability to impart construction knowledge
in the development of web-based trenching modules. The Director
stated that complainant also demonstrated an attention to detail that
"far exceeded" that of the other five individuals in the Construction
Branch, and attention to detail is a critical skills for the successful
development of training materials. "I believed putting [complainant]
in a position that would maximize the use of his skills and knowledge
would best serve the Organization, particularly since the Division of
Training and Educational Development was in need of someone with in-depth
knowledge of construction standards as they did not have anyone with
construction knowledge," the Director stated. Tab F1, p. 5.
The Director stated that complainant's pay, grade, and promotion potential
did not change because of the reassignment. He further stated that
employees' status within or outside MEO is not a factor in reduction in
force decisions.
At the conclusion of the investigation, the agency provided complainant
with a copy of the report of investigation and notice of his right to
request a hearing before an EEOC Administrative Judge (AJ). Additionally,
the agency dismissed complainant's claim that he was removed from the
MEO group on the basis that it was initiated by untimely EEO counselor
contact.
Complainant requested a hearing before an AJ and asked the AJ to
consolidate the instant complaint with his pending class action age
discrimination complaint that was pending before another EEOC AJ.
On June 27, 2007, the AJ denied complainant's consolidation request on the
basis that the instant complaint was not like or related to the matters
raised in the class complaint. On August 20, 2007, the AJ dismissed
complainant's hearing request as a sanction for his failure to follow
the orders of the AJ. Consequently, the AJ remanded the complaint
to the agency, and the agency issued a final decision pursuant to 29
C.F.R. � 1614.110(b).
In its final decision, the agency reiterated its dismissal of
complainant's MEO claim on the basis that it was initiated by untimely
EEO counselor contact. With respect to complainant's remaining claim
that the agency retaliated against him when it changed his position and
job duties, the agency further found that complainant failed to establish
a prima facie case of reprisal or prove that the agency's legitimate,
non-discriminatory reasons for its actions were pretext for unlawful
reprisal.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the AJ improperly denied his request
to consolidate the instant complaint with his pending age discrimination
class action complaint, which is pending before an AJ at the Commission's
Cleveland Field Office. Complainant further contends that the agency
improperly dismissed his claim that the agency retaliated against him
when it removed him from the MEO. Complainant contends that the agency
failed to show the date on which he learned of his "removal" from the MEO.
The agency requests that we affirm its final decision.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued 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). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
Consolidation
Complainant contends that the AJ improperly denied his request to
consolidate the instant complaint with his pending age discrimination
class action complaint, which is pending before an AJ at the Commission's
Cleveland Field Office. EEOC Regulation provides that the agency or
the Commission may consolidate two or more like or related complaints
of discrimination filed by the same complainant after appropriate
notification to the complainant. However, 29 C.F.R. �1614.606 also
provides that consolidation of complaints is at the discretion of the
AJ. The record reveals that complainant's class action complaint claims
that the agency failed to promote employees on the basis of age, whereas
the instant complaint concerns a claim that the agency retaliated against
complainant by removing him from MEO and assigning him new job duties.
We conclude that the issues raised in the two complaints are distinct
and not like or related to each other. Thus, there is no evidence that
the AJ abused his discretion in this matter.
Untimely Counselor Contact
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action. The
Commission has adopted a "reasonable suspicion" standard (as opposed to a
"supportive facts" standard) to determine when the forty-five (45) day
limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
According to the Director, the agency issued a memorandum to all employees
on April 27, 2006, in which the agency announced that it would discuss
MEO assignments with all employees in a mandatory meeting on April 28,
2006. The record contains a copy of the memorandum and an attached chart
that revealed that complainant was not assigned a position in the MEO.
The memorandum also stated that if employees' positions were not assigned
to the MEO, they would receive a draft copy of their position description
on April 28, 2006. The Director further stated that complainant was at
work on April 27, 2006, and attended the mandatory employee meeting on
April 28, 2006.
Complainant contends that the agency failed to determine the date
on which he learned that he was not assigned to MEO. However, the
agency held a meeting on April 28, 2006 in which it informed employees
of their assignments inside or outside MEO. The Director stated that
complainant was at the April 28, 2006 meeting and was informed that he
was not assigned to MEO. Significantly, complainant has not denied
being at the meeting or that he was informed that he was assigned to
a position outside MEO at the meeting. Thus, we are persuaded that
complainant learned that he was reassigned to a position outside MEO on
April 28, 2006. Complainant did not initiate EEO counselor contact
for this matter until June 13, 2006, which is beyond the 45-day time
limit. Complainant failed to provide any evidence which would warrant
a waiver of the applicable time limits. Thus, we find that the agency
properly dismissed complainant's MEO claim on the basis of untimely
contact.1
Disparate Treatment
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). 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 Corp. v. Green,
411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in
accordance with 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), 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. Whitmire v. Department
of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).
The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is pretextual. 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).
Assuming arguendo that complainant established a prima facie case of
reprisal, we nonetheless find that the agency provided legitimate,
non-discriminatory reasons for its actions. Specifically, management
stated that complainant was reassigned because the MEO Team recommended
that only five instructor positions were needed in the OTI Construction
Branch, but there were six instructors in the OTI Construction Branch,
including complainant. The Director stated that complainant was
assigned to his new position outside MEO because he believed reassigning
complainant would be of most value to the organization, and complainant
was an "average instructor" who rebuffed management's constructive
criticism.
Additionally, the Director stated that complainant was reassigned and
given new job duties because he is very knowledgeable about construction
standards and demonstrated an attention to detail that far exceeded that
of the other Construction Branch employees. The Director further stated
that complainant was reassigned to a position with a primary emphasis on
course development because he exhibited the skills that were critical to
the development of training materials. We find that complainant failed
to prove that the agency's legitimate, non-discriminatory explanations
were pretext for reprisal. Consequently, we find that the agency properly
found no reprisal.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final decision
because the preponderance of the evidence of record does not establish
that discrimination or harassment occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
____08/27/09______________
Date
1 Nevertheless, we note that an investigation was conducted on this claim,
which is intertwined with complainant's claim that he was reassigned.
Thus, the merits of complainant's MEO claim are nonetheless addressed
below.
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0120081320
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
8
0120081320