01986882
03-23-2001
John W. Laude, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
John W. Laude v. Department of Agriculture
01986882
March 23, 2001
.
John W. Laude,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01986882
Agency No. 941101
DECISION
Complainant timely initiated an appeal from the agency's final decision
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. and the
Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. �
621 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant alleges he was discriminated against on the bases of age
(DOB April 14, 1938) and reprisal (contacting an EEO counselor on July
13, 1993) when he was forced to resign on September 3, 1994, because of
sexual harassment charges filed against him by female co-workers. For the
following reasons, the Commission affirms the agency's final decision.
Complainant was a GM-13 Program Review Officer at the agency's Food and
Safety Inspection Service, Lawrence, Kansas. His supervisor (Supervisor)
informed him on July 1, 1993, that a co-worker (Co-worker) alleged
that during the past year he made sexual advances to her, groped her,
and then retaliated when she refused his advances by belittling her
work and criticizing her in front of others, and spreading rumors that
she was sexually involved with the Program Review Director (Director).
The Supervisor informed complainant that an investigation would ensue,
but he could avoid the investigation by either retiring or transferring
to Denver, Colorado. Complainant refused.
The record indicates that during the next few days, other female
co-workers came forward with allegations that complainant sexually
harassed or made advances to them. Complainant then contacted an
EEO counselor on July 13, 1993. Following the investigation into the
allegations of sexual harassment, the agency determined that there was
sufficient evidence to sustain the allegations. Complainant was told
that he would receive discipline in the form of a one week suspension
which would remain permanently on his record, or that he could either
transfer or retire.
Complainant opted to retire on September 3, 1994. He filed a formal
complaint on November 1, 1994, claiming constructive discharge because of
discrimination based on age and reprisal <1> He contended that he had not
sexually harassed anyone, and that the Director and others at the agency
were conspiring against him because he was rumored to have made sexual
advances to the Director's wife. Complainant also raised allegations
of misconduct by the Director, Deputy Director and others in his office,
including abuse of leave, questionable promotions and misuse of training
funds. These allegations were referred to the Employee Relations Branch
of the Personnel Division. The agency reports that an investigation into
the allegations was conducted between August 1995, and February 1996.
At the conclusion of the investigation into complainant's complaint,
he requested a final decision. The agency issued a decision finding no
discrimination. The agency found that complainant failed to establish
a prima facie case of age discrimination because he failed to show that
he was treated less favorably than employees not of his protected group.
The agency also noted that there was no evidence of discriminatory animus
in the agency's actions. The agency further found that complainant
failed to establish a prima facie case based on reprisal because the
actions that led to complainant's resignation were initiated prior to
his July 13, 1993 counselor contact. The agency noted that, assuming
arguendo that complainant established a prima facie case on either basis,
it articulated legitimate reasons for its actions, namely that numerous
witnesses corroborated the allegations of sexual misconduct and sexual
harassment upon which the agency had a legal obligation to act, and
that the proposed discipline and resignation in lieu of adverse action
adhered to agency policy.
On appeal, complainant reiterates arguments that he did not sexually
harass anyone, and that the charges against him were fabricated because
the Director was angry with him and jealous that women, including the
Director's wife, were attracted to him.
FINDINGS AND ANALYSIS
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. Complainant has the initial burden
of establishing a prima facie case of discrimination. If complainant
meets this burden, the burden shifts to the agency to articulate
some legitimate, nondiscriminatory reason for its challenged action.
Complainant must then prove, by a preponderance of the evidence,
that the legitimate reason articulated by the agency was a pretext for
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In
an ADEA case, the ultimate burden remains on appellant to demonstrate,
by a preponderance of the evidence, that age was a determinative factor.
Loeb v. Textron, 600 F. 2d 1003 (1st Cir. 1979); Fodale v. Department of
Health and Human Services, EEOC Request No. 05960344 (October 16, 1998).
This established order of analysis, in which the first step normally
consists of determining the existence of a prima facie case, need not
be followed in all cases. Where the agency articulates a legitimate,
nondiscriminatory reason for the actions at issue, the factual inquiry can
proceed directly to the third step of the McDonnell Douglas analysis,
that is, the ultimate issue of whether complainant has shown by a
preponderance of the evidence that the agency's actions were motivated
by discrimination. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981); see also U.S. Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983).
The Commission finds that the agency articulated legitimate,
nondiscriminatory reasons for its actions and find no evidence that
the Director or Deputy Director acted with discriminatory animus
toward complainant because of his age. The record indicates that the
Co-worker brought allegations of sexual misconduct and harassment against
complainant. The record also indicates that complainant was previously
counseled on two occasions by the Supervisor for inappropriate sexual
behavior, including an incident with another co-worker during a meeting
attended by visitors. The Supervisor had reason to believe the Co-worker,
and notified complainant of his options prior to the investigation.
When other female employees came forward with similar allegations,
the Supervisor and Director initiated an investigation as warranted.
In order to establish a prima facie case of discrimination for an
allegation of reprisal, complainant must show: 1) that he engaged in
protected activity, e.g., participated in a Title VII proceeding; 2)
that the alleged discriminating official was aware of the protected
activity; 3) that he was disadvantaged by an action of the agency
contemporaneously with or subsequent to such participation; and 4)
that there is a causal connection between the protected activity and
the adverse employment action. Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass), affirmed,
545 F. 2d 222 (1st Cir. 1976); see also Mitchell v. Baldridge, 759 F. 2d
80, 86 (D.C. Cir. 1985); Burrus v. United Telephone Co. of Kansas, Inc.,
683 F.2d 339, 343 (10th Cir. 1982), cert. denied, 459 U.S. 1071 (1982).
The record indicates that complainant engaged in protected activity
when he contacted an EEO counselor on July 13, 1993. We find that
complainant fails to establish a prima facie case of reprisal because
the actions that led to his forced retirement preceded his EEO counselor
contact. The Co-worker contacted the Supervisor about her allegations
of complainant's misconduct in June 1993. The Supervisor notified
complainant of the charges and his options on July 1, 1993. Even assuming
that complainant established a prima facie case, the agency articulated
legitimate, non-discriminatory reasons for initiating an investigation
into the allegations that complainant sexually harassed female co-workers,
and in taking action against him when the investigation substantiated
those claims.
CONCLUSION
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 (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
March 23, 2001
__________________
Date
1 There is no indication that complainant appealed his retirement or
constructive discharge to the Merit System Protection Board.