01A12245
09-12-2002
Richard A. LaDieu, Complainant, v. Marc B. Nathanson, Chairman, Broadcasting Board of Governors, International Broadcasting Bureau, (Voice of America), Agency.
Richard A. LaDieu v. International Broadcasting Bureau
01A12245
September 12, 2002
.
Richard A. LaDieu,
Complainant,
v.
Marc B. Nathanson,
Chairman,
Broadcasting Board of Governors,
International Broadcasting Bureau,
(Voice of America),
Agency.
Appeal No. 01A12245
Agency No. OCR-99-22
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. 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 GS-301-12, Office Automation Coordinator at the agency's Voice of
America division in Washington, D.C. Complainant sought EEO counseling
and subsequently filed a formal complaint on March 11, 1999, alleging
that he was discriminated against on the bases of race (Caucasian), sex
(male), and age (over 40 years old) when:
(1) on November 17, 1998, management officials (S1: female, no age
specified; S2: female, DOB: 5/20/56) reassigned him to Computer
Services, and as a result of this reassignment, he was hospitalized
with a heart condition;
on November 15, 1998, a management official (S3: male, no age specified)
slandered his name by falsely accusing him of sabotaging the wire
service system;
on November 5, 1998, S1 and S2 locked him out of the News Division
Administrative Office when the locks were changed;
in November 1998, S1 and S2 conspired with Union representatives to
change his working conditions;
in November 1998, S1 and S2 refused his request for time off to attend
a computer fair in New York;
in August 1998, S1 and S2 failed to include his name on the award's
list for the New Division's transition;
in August 1998, he received a memorandum from S1 and S2 criticizing
his lack of support for overseas computers and accusing him of sending
harassing email messages;
in January 1998, S1 and S2 deliberately left complainant's name off
the list for a computer training course;
on March 3, 1998, S1 and S2 failed to provide adequate space for
complainant;
during the period between March through April 1998, a management official
(S4: male, no age specified) falsely accused him of and reprimanded
him for using the agency's credit card improperly;
in November 1997, S1 and S2 reorganized the office space which resulted
in a major change in his working conditions; and
since January 1996, S1 and S2 have denied him a promotion to the GS-13
grade level.
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. 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 failed to establish a
prima facie case for all of his claims, except for two. Specifically,
the agency found that complainant established a prima facie case of
sex discrimination in regard to his exclusion from the News Division's
awards list. In addition, the agency found that complainant established
a prima facie case of age discrimination in regard to his name being
deliberately left off of a list for a computer training course.
On appeal, complainant raises no new contentions. Instead, complainant
requests a hearing before an AJ. The agency requests that we affirm
its FAD.
Preliminarily, the Commission denies complainant's request for a hearing
before an AJ. In particular, the record evidence shows that the agency,
in a letter dated March 12, 1999, informed complainant of his right to
request a hearing before an AJ if the complaint could not be resolved.
After it was determined that the complaint could not be resolved,
the uncontroverted evidence shows that complainant did not request a
hearing before an AJ until after the agency issued its FAD pursuant to
29 C.F.R. � 1614.110(b). Accordingly, the Commission finds complainant's
request as untimely.
In the absence of direct evidence of discrimination, the allocations of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973); see 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). First, complainant must establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonable give rise to an inference of discrimination; i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a
legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination. Id. at 256.
Claim 1 - Reassignment to Computer Services
Complainant contends that he was discriminated against on the bases of
sex and/or age when he was reassigned to the Computer Services Division.
Complainant also asserts that S1 and S2 both knew that he did not want
to work in the Computer Services Division because he considered the work
environment to be hostile.
The Commission finds that complainant failed to establish a prima facie
case of sex and/or age discrimination in regard to the above claim.
Although complainant is a member of a protected class and has arguably
shown that the reassignment constituted an adverse employment action,
there is no evidence in the record that the transfer was made based on
his sex and/or age. In addition, complainant did not show that any
of his co-workers similarly situated were treated differently under
similar circumstances.
Claim 2 - Sabotaging the Wire Service System
Complainant contends that he was discriminated against on the bases of sex
and/or age when at a News Division meeting the staff was misinformed that
the computer system would be down temporarily and there was no working
back-up system. Because maintenance of the system was complainant's
responsibility, he contends that this constituted slander on his work.
The Commission finds that complainant did not establish a prima facie
case of sex and/or age discrimination. Specifically, complainant
failed to show that he suffered an adverse employment action.
Hurt feelings, stemming from a lone, critical remark, which was not
the basis of a disciplinary action does not rise to the level of
an adverse employment action. See e.g., Franz v. Department of the
Treasury, EEOC Appeal No. 01962931 (September 11, 1997). The record
also provides that complainant received an apology the following day
for the misrepresentation.
Claim 3 - Locked out of the News Division Administrative Office
Complainant contends that he was discriminated against on the bases of
sex and/or age when the agency changed the locks to the News Division
Administrative Office and he could not gain access. The Commission
agrees with the FAD's conclusion that complainant failed to establish
a prima facie case of sex and/or age discrimination. In particular,
complainant did not show that he suffered an adverse employment action.
In addition, complainant failed to show that similarly situated co-workers
were given keys, or otherwise provided access. The record evidence also
establishes that no employee outside of the News Division was given a key.
Claim 4 - Conspiracy involving Union Representatives and Management
Complainant contends that he was discriminated against on the bases of sex
and/or age when S1, S2 and other management officials attempted to have
his working conditions changed. The Commission finds that complainant
has not established a prima facie case of sex and/or age discrimination.
Specifically, other than an unsupported assertion, complainant did not
show that he suffered an adverse employment action.
Claim 5 - Leave Request Denied
Complainant contends that he was discriminated against on the bases of
sex and/or age when his request to attend a computer fair in New York was
denied. The Commission finds that complainant failed to establish a prima
facie case of sex and/or age discrimination because he did not produce
evidence that any of his co-workers similarly situated were permitted
to attend the computer fair. In point of fact, the record reflects that
no News Division employees were given official time to attend the fair.
The record evidence shows that complainant attended the same computer
fair the year before and the agency decided that it would not derive a
benefit from sending complainant again. Even assuming, arguendo, that
complainant did establish a prima facie case, the Commission finds that
the agency articulated a legitimate, nondiscriminatory reason as to why
complainant's request was denied. Complainant provides no evidence that
the agency's reason was a pretext for discriminatory animus.
Claim 6 - Preclusion from Awards List
Complainant contends that he was discriminated against on the bases of
sex and/or age when S2 did not include his name on the award's list for
assisting with the transition of a new division. The Commission does not
agree with the FAD's conclusion that complainant established a prima facie
case of sex and/or age discrimination. Specifically, although complainant
is a member of a protected group and recipients of awards were either
female or younger than he, no technical worker received an award for the
work performed on the transition. Accordingly, we find that complainant
did not show that individuals similarly situated received an award.
Claim 7 - Critical Memorandum from Management
Complainant contends that he was discriminated against on the bases of sex
and/or age when he received a memorandum that was critical of his lack
of support for overseas computers. Complainant asserts that the email
also accused him of sending harassing email messages. The Commission
finds that complainant failed to establish a prima facie case of sex
and/or age discrimination. In particular, complainant failed to show
that he suffered an adverse employment action.
Claim 8 - Exclusion from AVID Training
Complainant contends that he was discriminated against on the bases of sex
and/or age when he was excluded from AVID training. The Commission agrees
with the FAD's conclusions that complainant established a prima facie
case of age discrimination. Specifically, complainant is a member of a
protected class, his exclusion from training was an adverse employment
action, and a similarly situated co-worker younger than 40 years of age
was permitted to attend the training.
The Commission also finds that the agency articulated a legitimate,
nondiscriminatory reason for its action. In particular, the record
reflects that complainant attended another computer course the same
week as the AVID training. In addition, S2 was not responsible for
compiling the list of attendees. Complainant provides no evidence,
other than his assertion, that the agency's articulated reason was a
pretext for discriminatory animus.
Claim 9 - Inadequate Office Space
Complainant contends that he was discriminated against on the bases
of sex and/or age when he was removed from his work space and placed
in the middle of the newsroom. The Commission finds that complainant
failed to establish a prima facie case of sex and/or age discrimination.
In particular, although complainant is a member of a protected class and
arguably suffered an adverse employment action, there is no evidence that
any of his co-workers, similarly situated, were treated more favorably.
The record reflects that all of the employees within the News Division
were moved from private offices to modular furniture within the News
Division.
Claim 10 - Credit Card Use
Complainant contends that the agency discriminated against him on the
bases of sex and/or age when he was falsely accused and reprimanded
for improper use of the government-issued credit card. The Commission
agrees with the FAD's conclusion that complainant failed to establish
a prima facie case of sex and/or age discrimination. Specifically,
the Commission finds that complainant failed to show that any of his
co-workers who had used their government-issued credit card without prior
travel authorization were treated more favorably. In point of fact,
after the situation was explained to the Office of Administration, travel
orders were prepared and a travel voucher was submitted for the trip.
Claim 11 - Office Reorganization
Complainant contends that the agency discriminated against him on the
bases of sex and/or age when the office underwent a reorganization which
made it impossible for him to perform his duties. As previously noted,
complainant fails to show that any of his co-workers were treated more
favorably. Consequently, the Commission finds that complainant failed
to establish a prima facie case of sex and/or age discrimination.
Claim 12 - Denial of Promotion to GS-13
Complainant contends that the agency discriminated against him on the
bases of sex and/or age when he requested, and was denied, a promotion
to the GS-13 grade level. Complainant contends that he requested the
upgrade because of the duties that he was performing.
The record reflects that S2 contacted the News Division's personnel
specialist and, after reviewing complainant's position description,
determined that a desk audit would result in complainant being downgraded.
Accordingly, S2 did not proceed with the desk audit. The Commission
notes that complainant could have pursued a desk audit on his own.
The Commission also notes that complainant's promotion potential was
a GS-12 and his job responsibilities were not the same as a GS-13.
Consequently, the Commission concludes that complainant failed to
establish a prima facie case of sex and/or age discrimination.
Therefore, after a careful review of the record, including complainant's
contentions, 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
September 12, 2002
__________________
Date