01984660
07-24-2001
Mark Matthews, Complainant, v. Donald L. Pressley, Acting Administrator, Agency for International Development (AID), Agency.
Mark Matthews v. Agency for International Development
01984660
July 24, 2001
.
Mark Matthews,
Complainant,
v.
Donald L. Pressley,
Acting Administrator,
Agency for International Development (AID),
Agency.
Appeal No. 01984660
Agency No. E0P9533
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 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. Complainant
alleged that he was discriminated against on the bases of sex (male),
race (White) and age (over 40) when: (1) he was subjected to a biased
EEO investigation based on allegations of sexual harassment lodged by
a female subordinate; and (2) he was given an oral admonishment by the
agency Director of Human Resources.
The record reveals that during the relevant time, complainant was employed
as a Senior Foreign Service Officer (Class Minister Counselor), assigned
as the agency's Representative to the Sultanate of Oman. Believing he
was a victim of discrimination, complainant sought EEO counseling and
subsequently filed a formal complaint on February 17, 1995. At the
conclusion of the investigation, complainant was informed of his right to
request a hearing before an EEOC Administrative Judge or alternatively,
to receive a final decision by the agency. Complainant originally
requested a hearing but later withdrew his request. Accordingly, the
agency issued a FAD.
A brief summary of the facts is as follows. A subordinate of complainant
(AE) raised an allegation of sexual harassment with the agency in June
1993, alleging that during her assignment in Oman complainant spoke to
her about his sexual liaisons, pressed her about the state of her marriage
and sex life, and made other sexually charged statements to her. AE was
reassigned to another area of the world in July 1993, at her request.
In early June 1993, AE's Career Counselor in the Office of Human
Resources (HR) (White, male, dob: 7/8/43) spoke to AE about her
allegations and ultimately advised her to contact the Office of Equal
Opportunity Programs (EOP). Sometime later in June 1993, complainant was
counseled by then agency Counselor and Assistant Administrator (both White
males over 40 years old) in accordance with agency policy. A request
for an investigation into AE's allegations was made by Acting Deputy
Administrator of the agency (AD) (White, male, over 40 years of age).
Although AD's initial reaction to AE's allegations was to have complainant
removed from his position, EOP and HR advised that the allegations should
be investigated first and complainant be given an opportunity to address
the allegations. AD agreed with this recommendation. In late July,
1993, the agency hired a contractor (CI) (Black, female, over 40 years
old), to conduct an inquiry into AE's allegations of sexual harassment.
CI commenced an investigation by interviewing persons who worked directly
with AE and complainant in Oman. These interviews were conducted
by telephone. CI never traveled to Oman due to budgetary constraints.
The report of inquiry on the sexual harassment allegations was completed
by CI on March 10, 1994. The final report included a total of 29
affidavits obtained by CI.
The Chief of Complaints Adjudication for EOP (CC) (White, male, dob:
6/1/49) had the responsibility to assure that the investigation was
complete, thorough and fair. In addition, he was responsible for
resolving the complaint or preparing a FAD. Writing for the EOP, CC
prepared a 16-page �Analysis and Findings� in the case and determined
that �through direct testimony of [AE] and other witnesses, that
[complainant's] conduct had the effect of creating an intimidating and
offensive work environment based on [AE's] gender.�
The Director of Personnel (DP) (white, Hispanic, male, dob: 1/1/45) and
the agency's General Counsel approved the �Analysis and Findings.� DP
recommended a verbal admonishment of complainant based upon the totality
of the evidence. This recommendation was approved and the discipline
was issued on February 17, 1995.
In its FAD, the agency concluded that complainant failed to establish,
by a preponderance of the evidence, that the investigation was biased or
based on discriminatory motives. Contrary to complainant's assertions
that the investigation was unfair and biased, the agency submits
that it was obligated to investigate AE's discrimination complainant.
Despite complainant's assertions that the evidence clearly supported
that AE was falsely asserting claims, the agency asserts that there was
evidence to support AE's claims. The agency also explains, inter alia,
that it did not contact certain witnesses because these witnesses were
not deemed necessary or relevant to the allegations for a variety of
reasons articulated by the agency. In addition, the agency asserts that
it had no obligation to have the investigator travel to Oman and asserts
that the investigative file was complete and thorough despite the failure
to expend funds for in-person interviews in Oman. Moreover, the agency
argues that the record shows that witnesses were not coerced by management
but rather management made efforts to obtain objective affidavits from
reluctant witnesses. The agency also argues that the unsubstantiated
assertions by complainant that the EEO Director, while working in another
agency, was determined by the EEOC in 1979 to have discriminated against
a Hispanic male are immaterial. Moreover, the record indicates that
the EEO Director was on extended sick leave throughout the course of the
sexual harassment investigation. The agency also noted that complainant
failed to present any similarly situated comparison employees, outside
complainant's protected classes who were treated more favorably. Lastly,
the agency argues that the decision makers involved in the investigation
and discipline stages of AE's complaint were all within complainant's
protected class. The agency overall argues that the record provides no
persuasive basis upon which to conclude that the investigation of AE's
sexual harassment was partial or discriminatory toward complainant.
On appeal, complainant generally restates arguments previously made.
The agency requests that we affirm its FAD.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); and Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)
(requiring a showing that age was a determinative factor, in the sense
that "but for" age, complainant would not have been subject to the
adverse action at issue), the Commission agrees with the agency that
complainant failed to establish, by a preponderance of the evidence,
that the agency's actions were motivated by discriminatory animus.
Even assuming, arguendo, that complainant can show the investigation to
be biased or unfair, there is no evidence in the record of animus based
on complainant's age, sex, or race.
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 FAD.
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
July 24, 2001
__________________
Date