01a10184
01-09-2001
Donald Atley, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, (Grain Inspection, Packers and Stockyards Administration), Agency.
Donald Atley v. Department of Agriculture
01A10184
January 9, 2001
.
Donald Atley,
Complainant,
v.
Daniel R. Glickman,
Secretary,
Department of Agriculture,
(Grain Inspection, Packers and Stockyards Administration),
Agency.
Appeal No. 01A10184
Agency No. 98-0602
Hearing No. 130-99-8166X
DECISION
Complainant timely initiated an appeal from the agency's final action
concerning his equal employment opportunity (EEO) 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.<1> The
appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges
he was discriminated against on the basis of reprisal (prior EEO activity
on March 7, 1997) when, on or about February 8, 1998, he received a seven
(7) calendar day suspension for conduct unbecoming of a federal employee.
For the following reasons, the Commission AFFIRMS the agency's final
action.
The record reveals that during the relevant time, complainant was
employed as an Agricultural Commodity Grader at the agency's Greenville,
Mississippi, Suboffice of the Stuttgart, Arkansas, Field Office.
By letter dated January 28, 1998, complainant was informed by the
Deputy Administrator of the agency that he was being suspended for
seven (7) calendar days, from February 8, 1998 through February 14,
1998. The reasons articulated in the notice of suspension were that
complainant: (1) made inappropriate sexual comments about a female
employee at the Cargill Rice Milling Plant; (2) made inappropriate
and threatening statements to employees at the Dreyfus Corporation in
McGeehee, Arkansas; and (3) made an inappropriate and harsh response to
his supervisor. See Investigative Report, at F14. Believing he was the
victim of discrimination, complainant sought EEO counseling and filed a
formal complaint with the agency on April 20, 1998. At the conclusion
of the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
The AJ issued a decision without a hearing, finding no discrimination.
The AJ concluded that complainant established a prima facie case
of retaliation. In so finding, the AJ found that complainant had
participated in prior EEO activity, two of the responsible management
officials involved in the suspension were aware of complainant's prior
EEO activity, the suspension constitutes an adverse term or condition
of employment and there is a causal connection between the EEO activity
and the adverse agency action. The AJ further found that the agency
articulated legitimate, nondiscriminatory reasons for its actions, namely,
that complainant was issued the suspension for the reasons articulated in
the suspension notice. The AJ found that complainant did not establish
that more likely than not, the agency's articulated reasons were a pretext
to mask unlawful retaliation, and that complainant failed to produce
any affirmative evidence placing material facts at issue, as to proof
of pretext. The agency's final action implemented the AJ's decision.
Complainant contends on appeal that the management officials responsible
for his suspension gave false statements during the investigation.
The agency has requested that its final action be affirmed.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. We find that the AJ
properly found that the agency articulated legitimate, nondiscriminatory
reasons for issuing the suspension to complainant. In addition, the AJ
properly found that complainant failed to demonstrate that more likely
than not the agency's articulated reasons were a pretext for retaliation.
We discern no basis to disturb the AJ's decision. 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 action.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
January 9, 2001
__________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.