01A12116
07-31-2002
William L. McGovern, Terence L. Wagner, and Eric J. Villavaso, Complainants, v. Ann M. Veneman, Secretary, Department of Agriculture (Agricultural Research Service), Agency.
William L. McGovern, Terence L. Wagner, and Eric J. Villavaso
v. Department of Agriculture (Agricultural Research Service)
01A12116, 01A12178, and 01A12244
July 31, 2002
.
William L. McGovern, Terence L. Wagner, and Eric J. Villavaso,
Complainants,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture
(Agricultural Research Service),
Agency.
Appeal Nos. 01A12116, 01A12178, and 01A12244
Agency Nos. 980923, 990221, 990277, 990713, 990827,
000245, 980924, 990194, and 990112
DECISION
INTRODUCTION
This decision addresses three separate appeals brought by William
L. McGovern, Terence L. Wagner, and Eric J. Villavaso (�complainant 1,�
�complainant 2,� and �complainant 3,� respectively, or �complainants,�
collectively). At all relevant times, these complainants all worked
as respected scientists for the Department of Agriculture (Agricultural
Research Service) (�the agency�) in Starkville, Mississippi. They worked
together there performing various types on research on boll weevils.
During 1998 and 1999, each complainant filed one or more equal employment
opportunity (�EEO�) complaints against the agency. The gist of the
complaints filed by each complainant was essentially the same � that
agency officials, and one of the agency's area directors (�Director�), in
particular, had treated them disparately, harassed them, and/or retaliated
against them by (1) reassigning them to a different unit within the
agency; (2) threatening to relocate them to a different geographical
region; and (3) denying their requests to attend various professional
conferences and/or for compensatory time. Complainants claimed that the
agency discriminated against them in this manner because of their age
(all over forty at the time), their sex (all male), and/or in reprisal
(for prior EEO activity). Complainants were thus effectively alleging
violations of Title VII of the Civil Rights Act of 1964 (�Title VII�),
as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination in
Employment Act of 1967 (�the ADEA�), as amended, 29 U.S.C. � 621 et seq.
The agency investigated complainants' allegations, and ultimately
issued separate (but substantially similar) final agency decisions to
complainant 1, complainant 2, and complainant 3 (�FADs,� collectively).
In these FADs, the agency concluded that complainants had not proven that
it had committed any illegal employment discrimination. Complainants
then promptly filed separate notices challenging these FADs with us,
the United States Equal Employment Opportunity Commission (�EEOC� or
�this Commission�). We accepted complainants' notices and docketed them
as separate appeals.
STANDARD OF REVIEW
For administrative convenience, and because they involve similar issues,
we have consolidated these appeals for adjudication. See 29 C.F.R. �
1614.606. We are now issuing this decision under the authority granted to
us by 29 C.F.R. � 1614.405(a). Under this same regulation, we must review
the FADs in question de novo (or �anew�). See 29 C.F.R. � 1614.405(a).
This means that in deciding this case, we can accept or reject the
agency's factual and legal conclusions. See Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (rev. Nov. 9, 1999) (�EEO
MD-110�), at 9-15. Accordingly, we have carefully reviewed the records
before us to discern whether a preponderance of the evidence warrants a
rejection of the agency's determinations � or supports any finding of
illegal employment discrimination here. See 29 C.F.R. � 1614.405(a).
We conclude that it does not.
ANALYSIS AND FINDINGS
Complainants have raised claims of age-based, sex-based, and
reprisal-based disparate treatment. Such claims are properly analyzed
under an evidentiary framework refined over time by the United States
Supreme Court. Beginning with McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973), the high Court issued a series of decisions explaining
how plaintiffs (like complainants) can prove unlawful disparate
treatment where direct evidence of such discrimination is lacking.<1>
See id.; see also Furnco Construction Corp. v. Waters, 438 U.S. 567
(1978); Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24
(1978); Texas Department of Community Affairs v. Burdine, 450 U.S. 248
(1981); United States Postal Service Board of Governors v. Aikens, 460
U.S. 711 (1983); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993);
and Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000).
Under this Supreme Court precedent (commonly called the �McDonnell
Douglas� framework, after the case which first introduced it), whether an
employer intentionally discriminated against a complainant is a question
of fact. See, e.g., Aikens, 460 U.S. at 715; cf. Burdine, 450 U.S. at
255 n. 8. The plaintiff must thus persuade the relevant fact finder
(this Commission in this case), that discrimination actually occurred.
Accordingly, an evidentiary �burden of production� is placed initially
on the complainant to put forth a prima facie case of discrimination.
The plaintiff may do so by presenting facts which, if unexplained,
reasonably give rise to an inference of discrimination (i.e., that a
prohibited consideration was a factor in the adverse employment action).
See, e.g., McDonnell Douglas, 411 U.S. at 802; see also St. Mary's
Honor Center, 509 U.S. at 510 n. 3. If a complainant successfully
establishes such a prima facie case, the burden of production then
shifts to the employer to rebut the complainant's presumptive showing.
That is, the defendant must articulate legitimate, non-discriminatory
reasons for its ostensibly objectionable conduct. See, e.g., McDonnell
Douglas, 411 U.S. at 802. If and when the defendant offers such a lawful
explanation, �the presumption raised by the prima facie case is rebutted�
and essentially �drops from the case.� St. Mary's Honor Center, 509
U.S. at 507. Consequently, the complainant must be given �an opportunity
to prove by a preponderance of the evidence that the legitimate reasons
offered by the defendant were not its true reasons.� Burdine, 450 U.S. at
253. In other words, the burden of production shifts (one last time) back
to the complainant to show that the explanation offered is but a pretext
for the employer's true, prohibited discriminatory intent. See, e.g.,
McDonnell Douglas, 411 U.S. at 804, 807; and Burdine, 450 U.S. at 253.
In summary then, and quite critically, the complainant at all times
carries the ultimate burden of persuading the finder of fact � by a
preponderance of (albeit circumstantial) evidence � that the complainant
was a victim of intentional discrimination. See, e.g., Sweeney, 439
U.S. at 29 (Stevens, J., dissenting); Burdine, 450 U.S. at 256; Aikens,
460 U.S. at 716; St. Mary's Honor Center, 509 U.S. at 507, 511, 518;
and Reeves, 530 U.S. at 143. In this case, complainants have not met
this burden with respect to their various claims. Even if we assume
for argument's sake that they satisfied their initial obligation to put
forth a prima facie case of age-based, sex-based, and/or retaliation-based
disparate treatment, the agency responded accordingly. That is, and as
the agency explained in its FADs, the agency provided various legitimate,
non-discriminatory reasons for reassigning complainants to a new unit,
proposing to relocate them to a different geographical region, denying
their requests to attend professional conferences, and limiting the
amount of available overtime. In our view � and notwithstanding the
arguments raised and evidence highlighted in complainants' appeal
brief � complainants failed to prove that these facially legitimate,
non-discriminatory agency explanations were a pretext for any prohibited
motivation. The preponderance of the evidence simply does not support
the notion that complainants were treated disparately because they were
over forty,<2> male and/or had filed EEO complaints. Cf. St. Mary's
Honor Center, 509 U.S. at 515, 519.
Similarly, the evidence does not support a finding that the agency engaged
in any sort of prohibited harassment, either. As this Commission's
guidance points out:
the anti-discrimination statutes are not a �general civility code.�
Thus, federal law does not prohibit simple teasing, offhand comments,
or isolated incidents that are not �extremely serious.� Rather, the
conduct must be �so objectively offensive as to alter the �conditions'
of the victim's employment.� The conditions of employment are altered
only if the harassment culminated in a tangible employment action or
was sufficiently severe or pervasive to create a hostile work environment.
EEOC Notice No. 915.002, Enforcement Guidance: Vicarious Employer
Liability for Unlawful Harassment by Supervisors (June 18, 1999) (web
version) (�Vicarious Liability Enforcement Guidance�), at 4 [internal
notes and citations omitted].
Complainants have asserted that the actions of agency officials (e.g.,
refusing to let them attend professional conferences, proposing to
relocate them, etc.) created a �hostile work environment.� Even if we
assume for argument's sake that these actions were severe or pervasive
enough to create a hostile work environment, we still could not find the
agency liable for unlawful harassment here. To prove a case of harassment
under Title VII and/or the ADEA, complainants must demonstrate that
agency officials harassed them because they are over forty, men, and/or
engaged in prior EEO activity. See Vicarious Liability Enforcement
Guidance, at 4 (providing that �[h]arassment does not violate federal
law unless it involves discriminatory treatment on the basis of race,
color, sex, religion, national origin, age of 40 or older, disability, or
protected activity under the anti-discrimination statutes�). As we noted
above, however, we are not convinced the agency took any of the challenged
actions because of complainants' age, sex, or protected activity.
We simply cannot conclude it is more likely than not that complainants
were harassed because they are members of various classes protected from
discrimination by Title VII or the ADEA. Consequently, we cannot hold the
agency liable for illegal harassment-based discrimination. See Bennett
v. Department of the Navy, EEOC Request No. 05980746 (September 19,
2000); Wolf v. United States Postal Service, EEOC Appeal No. 01961559
(July 23, 1998).
CONCLUSION
Therefore, we conclude that the FADs in question are affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if 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 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; see also EEO MD-110, at 9-18. 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 the
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with the 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)
Complainant has the right to file a civil action in an appropriate United
States District Court within ninety (90) calendar days from the date that
complainant receives this decision. If complainant files a civil action,
complainant 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 complainant's case in court. �Agency� or �department�
means the national organization, and not the local office, facility or
department in which complainant works. If complainant files a request
to reconsider and also files a civil action, filing a civil action will
terminate the administrative processing of the complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If complainant decides to file a civil action, and if complainant does
not have or cannot afford the services of an attorney, complainant may
request that the Court appoint an attorney to represent complainant and
that the Court permit complainant 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.; and 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 complainant's 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 entitled �Right to File A Civil Action.�
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 31, 2002
__________________
Date
1Such a procedural scheme is �crucial to the success of most [disparate
treatment] claims, for the simple reason that employers who discriminate
are not likely to announce their discriminatory motive,� St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 534 (1993) (Souter, J., dissenting),
and �[t]here will seldom be �eyewitness' testimony as to the employer's
mental processes,� United States Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 716 (1983). Consequently, the Supreme Court
has created an evidentiary �formula [that] does not require direct proof
of discrimination.� International Brotherhood of Teamsters v. United
States, 431 U.S. 324, 358 n. 44 (1977). Cf. Transworld Airlines,
Inc. v. Thurston, 469 U.S. 111, 121 (1985) (explicitly providing that
this circumstantial evidentiary framework is actually inapplicable where
a plaintiff presents direct evidence of discrimination).
In their appeal brief, complainants argue that there is indeed �direct
evidence� of at least age bias in this case. On or around July 13,
1998, complainants met with Director to discuss Director's proposal
to move complainants to a new geographical location some 130 miles
away from their current research base. In response to complainants'
expressions of frustration and skepticism about the need for this move,
Director stated that if they did not want to relocate to the new area and
wanted to leave the agency, then Director could not stop them, and would
go out and replace them with younger scientists who would do just as
good a job as complainants, and maybe better. The agency (in its FADs)
concedes that Director made this remark, and complainants have seized
upon it as explicit proof that an illegal agency motive was at play here.
We disagree. Director himself was 76 years old at the time he made
this statement, and there is no indication that Director favored
younger employees beyond this lone stray remark, made in response to
protestations and threats of resignation by subordinates. We are
not persuaded that this remark reveals that the agency had already
resolved to relocate complainants precisely because they are over 40.
Rather, we believe that it only reflects Director's opinion as to
a likely outcome should complainants on their own decide to quit.
In our view, therefore, this comment is not direct evidence proving
a discriminatory motive for the challenged agency actions. See EEOC
Policy Guidance No. 915.002: Revised Enforcement Guidance on Recent
Developments in Disparate Treatment Theory (Jul. 14, 1992) (web version)
(�Disparate Treatment Guidance�), at 3-4 (clarifying that �[d]irect
evidence of discriminatory motive may be any written or verbal policy
or statement made by a respondent or respondent official that on its
face demonstrates a bias against a protected group and is linked to the
complained of adverse action,� and explaining that �direct evidence of
bias, standing alone, does not necessarily prove that a discriminatory
motive was responsible for a particular employment action�).
2As we have already noted, even Director's �younger scientists� comment
itself is insufficient to prove an agency age bias. This �stray remark�
alone is hardly enough to convince us that the ADEA was violated here.
Cf. Gleason v. Department of Agriculture, EEOC Appeal No. 01A10046
(Apr. 11, 2002). This is especially true in light of precedent requiring
that complainants prove that age was a dispositive factor for the
objectionable agency decision(s). See, e.g., Mikula v. United States
Postal Service, EEOC Appeal No. 01A11966 (July 12, 2002) (citing Loeb
v. Textron, 600 F.2d 1003 (1st Cir. 1979), and noting that to prevail
on an ADEA claim, a complainant must show that age was a determinative
factor for the challenged conduct �in the sense that �but for' age,
complainant would not have been subject to the adverse action at issue�).