01A31129
02-03-2004
William P. Souza, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.
William P. Souza v. Department of the Navy
01A31129
February 3, 2004
.
William P. Souza,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A31129
Agency No. DON 01-68322-002
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. and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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 Computer Assistant, GS-335-7 at the agency's Naval Education and
Training Professional Development and Technology Center facility.
Complainant sought EEO counseling and subsequently filed a formal
complaint on June 27, 2001, alleging that he was discriminated against
on the bases of disability (HIV/AIDs, anxiety, depression) and reprisal
for prior EEO activity when:
(1) his position description was changed on or about May 1, 2000;
he was required to work overtime and to travel without advanced notice;
his duties were changed to include some of those held by an outside
contractor.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge
(AJ) 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 did not establish by a
preponderance of the evidence that the agency discriminated against him on
any of the alleged bases. More specifically, the agency found that there
was no evidence that similarly situated employees outside of complainant's
protected classes were treated more favorably than he was. According
to the agency, complainant was the only civil service or non-military
employee in the office, and as such, he could not be compared to other
employees in the office. The agency concluded that complainant was an
individual with a disability, but that the agency provided complainant
the reasonable accommodations he requested. The agency also stated
that it held a meeting with complainant to discuss his concerns about
his position description. It was agreed that he would be provided with
24 hours notice of travel, and would not be required to work overtime.
Regarding his claim of reprisal, the agency concluded that there was no
evidence of any adverse action taken against complainant and for that
reason, he failed to show any retaliatory action was taken against him.
On appeal, complainant makes no additional statements. The agency
requests that we affirm its final agency decision.
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). He
must generally establish a prima facie case by demonstrating that he
was subjected to an adverse employment action under circumstances that
would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry
may be dispensed with when 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); See Heyman v. Queens Village Comm. for Mental Health for Jamaica
Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA,
179 F.3d 929, 933-34 (D.C.Cir. 1999). (Analyzing a claim of disability
discrimination claim under the McDonnell Douglas framework).
We will assume for purposes of this decision that complainant meets
the definition of an individual with a disability as set forth by the
Commission's regulations. See 29 C.F.R. �1630 et. seq. We conclude
however, that complainant has not shown the agency discriminated against
him on the basis of a disability. Complainant specifically stated in
his testimony that he did not believe the agency rewrote his position
description because of his disability. Additionally, he also stated that
others in the office were treated the same as he was in being required to
work overtime and to travel without prior notice. Complainant conceded
that he does not travel �at present� indicating that he receives better
treatment in this regard, than his co-workers. Therefore, we conclude
by a preponderance of the evidence that complainant did not establish
disparate treatment based on a disability.
From his affidavit testimony, complainant appears to state that because
his position description was re-written to require travel and overtime,
he required an accommodation of advanced notice of travel and could not
work overtime. According to his first line supervisor (S1), she met with
complainant through a mediation forum to address his concerns regarding
the changes in his position description. In particular, S1 stated
they discussed complainant's concerns regarding language indicating a
requirement for travel, overtime and assistance with the Help Desk.
She stated that complainant noted his need for advanced notice of
travel and overtime in case his health made it difficult for him to meet
these demands. Complainant did not want to assist with the Help Desk.
S1 stated she agreed to give advanced notice of travel requirements and
that complainant would not be penalized if he could not work overtime.
Complainant's duties regarding the Help Desk were the same duties he
already performed, and therefore, would not increase but would not be
eliminated. Complainant has not disputed S1's account and has not argued
that her responses to his request for an accommodation were unreasonable
or did not meet his needs. Therefore, we conclude the agency has not
discriminated against complainant on the basis of his disability and
his requests for reasonable accommodation were met.
Turning to complainant's claim of retaliation for his prior protected
activity, according to the burdens set forth in McDonnell Douglas,
Hochstadt v. Worchester 425 F.Supp. 318,aff'd, 545 F.2d 222 (1st
Cir. 1976) (applying McDonnell Douglas to reprisal cases) 324, 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 a 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. The Commission's
policy on retaliation prohibits any adverse treatment that is based on a
retaliatory motive and is reasonably likely to deter complainant or others
from engaging in a protected activity. EEOC Compliance Manual Section 8,
�Retaliation� No. 915.003 at p 8-13 (May 20, 1998). See also Whitmire,
v. Department of the Air Force, EEOC Appeal No. 01A00340 (September 25,
2000). Based on the foregoing discussion of the evidence, complainant
has not shown by a preponderance of the evidence that he was subjected
to reprisal or any adverse employment action reasonably likely to deter
him or other employees from engaging in protected activity. Rather,
the evidence reflected that his new position description more accurately
set forth his duties and responsibilities that were already in place.
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 agency's
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
February 3, 2004
__________________
Date