0120071564
04-17-2009
Daniel M. Moran, Complainant, v. Michael E. Fryzel, Chairman, National Credit Union Administration, Agency.
Daniel M. Moran,
Complainant,
v.
Michael E. Fryzel,
Chairman,
National Credit Union Administration,
Agency.
Appeal No. 0120071564
Agency No. 0607
DECISION
On February 3, 2007, complainant filed an appeal from the agency's January
8, 2007 final decision concerning his equal employment opportunity (EEO)
complaint alleging 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 the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final decision.
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as a CU-7 Employee Development Assistant, Division of Training
and Development (DTD) at the agency's Alexandria, Virginia facility.
The record reveals that in mid-2005, complainant asked his supervisor,
the Director (female, approximately 50 years old at the relevant time)
if he could be detailed into a CU-11 Management Analyst position.
Complainant alleges that at the time, he had taken on some of the
position's responsibilities while the incumbent was out on extended
leave. Instead, the Director chose a CU-12 employee (female, approximately
48 at the relevant time) to serve in the position temporarily. When the
incumbent of the Management Analyst position retired, the CU-12 female
was officially reassigned into the position. The position was then
upgraded from a CU-11 to a CU-12.
Complainant also alleges he was subjected to harassment when he was
denied training in May 2005, yet two female employees were permitted
to attend training. The Director averred that she had to cancel
complainant's attendance at the training so that there was adequate
coverage in the office, and that he was permitted to attend the training
the following year. She also averred that one of the female employees was
permitted to attend the training because she was pregnant and could not
reschedule. The other was permitted to attend training after complaining
to management.
Complainant also alleges that he was subjected to harassment when he was
denied a detail to the Office of General Counsel (OGC), and when his
travel voucher was not paid because of a "computer glitch." Finally,
he alleges that the Director harassed him when she had his file cabinets
accessed while he was on leave.
On April 19, 2006, complainant filed an EEO complaint alleging that he
was discriminated against on the bases of sex (male) and age (55 at the
relevant time) when:
1. on or about December 15, 2005, he was not selected for the
position of Management Analyst; and
2. he was subjected to a continuing pattern and practice of
discrimination which constituted a hostile work environment as a result
of a variety of incidents, including (a) his nonselection as Management
Analyst; (b) the cancellation of training scheduled in May 2005; (c)
denial of detail opportunities; (d) delayed payment of a travel voucher;
and (e) management accessed his locked work cabinets.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant's request, the agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b). The decision concluded that complainant failed
to prove that he was subjected to discrimination as alleged.
Specifically, the agency found complainant established a prima facie case
of discrimination when he was not selected for the Management Analyst
detail. However, the agency also found he failed to establish that
the agency's reasons for its actions were a pretext for discrimination.
Specifically, the selectee for the detail had recently been working for
a Board Member who retired. She was selected for the detail because
of her organizational and analytical skills, and then selected for the
position based on her performance during the detail. As a CU-12, she
was placed into the position, and then the Director had the position
upgraded pursuant to merit promotion procedures.
The agency also found that complainant failed to establish he was
subjected to harassment based on sex and/or age. The agency found that
the only evidence complainant provided which could arguably support his
claim was the testimony of one co-worker who averred that complainant's
age could be a factor in the Director's treatment of him. She also
averred that as the oldest in the office, she has been left out of
conversations; however, she does not feel that the office is hostile.
Furthermore, since she has complained, the Director has not left her
out of office business.
CONTENTIONS ON APPEAL
On appeal, complainant argues that the he performed many of the Management
Analyst duties while the incumbent was out sick. He claims no males have
been selected for any positions in the recent past. Complainant also
argues that management should not have asked him to provide his resume
as evidence of his qualifications for a detail. Rather, he argues he
only needs to show he has the "ability to learn" the subject matter.
In response, the agency asks that the final decision be affirmed.
It claims it properly selected the most qualified person for the
Management Analyst position. Further, the agency notes that, although
complainant claims no males have been selected for positions, he does
not provide any persuasive evidence of discrimination. The agency also
notes that complainant was not released to work the OGC detail because he
was needed in the DTD office. The agency states also that complainant
had been considered for the OGC position but refused to provide his
academic transcript. The agency notes that complainant was initially
denied training because of staffing needs, but was ultimately sent on
the training.
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").
Under the ADEA, it is "unlawful for an employer . . . to fail or refuse
to hire or to discharge any individual or otherwise discriminate against
any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual's age." 29
U.S.C. � 623(a)(1). When a complainant alleges that he or she has been
disparately treated by the employing agency as a result of unlawful
age discrimination, "liability depends on whether the protected trait
(under the ADEA, age) actually motivated the employer's decision."
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000)
(citing Hazen Paper Co. v. Biggins, 507 U.S. 604,610 (1993)). "That is,
[complainant's] age must have actually played a role in the employer's
decision making process and had a determinative influence on the
outcome." Id.
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
must initially establish a prima facie case by demonstrating that he or
she 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). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. 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, 143 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
After a careful review of the record, we do not find that the agency
erred when it determined complainant was not subjected to age or sex
discrimination. The selectee, who was a CU-12, was selected for the
detail, and ultimately the permanent position, because she had the skills
necessary for the job. Complainant provided insufficient evidence that he
actually performed many of the position's duties while the incumbent was
out on leave, as he states. Complainant did not otherwise establish that,
as a CU-7, he was qualified for the position. Accordingly, complainant
has not established that he was subjected to unlawful discrimination in
connection with this claim.
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
A single incident or group of isolated incidents will not be regarded
as discriminatory harassment unless the conduct is severe. Walker
v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the
harassment is sufficiently severe to trigger a violation of Title VII
[and the Rehabilitation Act] must be determined by looking at all the
circumstances, including the frequency of the discriminatory conduct,
its severity, whether it is physically threatening or humiliating, or
a mere offensive utterance, and whether it unreasonably interferes with
an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17
(1993).
Complainant alleged he was subjected to harassment in the form of a
series of personnel actions, including his non-selection for a position,
denial of an OGC detail, and denial of training. Further, he claims he
was subjected to harassment when his travel voucher was not processed
due to a "computer glitch" and when his cabinets were accessed while he
was on leave.
After a review of the record, we do not find that this conduct rises
to the level of a hostile work environment. One witness testified
that while the Director may "pick on" complainant, it was not hostile.
The witness opined that it was "possible" the treatment was because of
complainant's age, but it also could be because complainant is not one
of the Director's "favorites." Complainant, five years the Director's
senior, did not provide any other evidence of ageist comments or
evidence that the Director harbored discriminatory animus against him.
The record reveals that complainant's cabinets were accessed because
documents were needed before the end of the year, and complainant was
on leave. The record further reveals that complainant was asked to
provide the documents, but he refused. Finally, there was evidence
that others have had their cabinets accessed in similar circumstances,
and have likewise had their travel vouchers not immediately processed.
Complainant failed to establish that others were not asked to provide an
academic transcript for a detail to OGC. In sum, we find that complainant
failed to establish that the conduct rose to the level of a hostile work
environment or was because of his age and/or sex.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
final action.
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
April 17, 2009
Date
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0120071564
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120071564
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