01a52469
05-24-2005
Robert A. Yancy, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Robert A. Yancy v. Department of Veterans Affairs
01A52469
May 24, 2005
.
Robert A. Yancy,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A52469
Agency No. 980083
DECISION
Complainant timely initiated an appeal from a final agency decision
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. 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 complainant was formerly employed as a Realty
Specialist in the agency's Property Management Section of the Loan
Guaranty Division in San Diego, California. Complainant's probationary
period was to last one year from his appointment on July 7, 1996.
Complainant was terminated, however, for unsatisfactory performance,
effective June 20, 1997. Believing he was a victim of discrimination,
complainant sought EEO counseling and subsequently filed a formal
complaint on August 31, 1997, alleging that he was discriminated against
on the basis of sex (male) with regard to:
(1) failing to convert complainant to full-time at the end of his
probationary period; and
sexual harassment.<0>
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
initially requested a hearing, but subsequently withdrew that request
and asked that the agency issue a final decision (FAD).
In its FAD, the agency concluded as to issue (1), that complainant failed
to establish a prima facie case of disparate treatment as he failed
to identify a similarly situated individual, outside his protected
class, who was treated more favorably under similar circumstances.
The FAD nevertheless continued its analysis, and found that the agency
articulated legitimate, nondiscriminatory reasons for its action; namely,
S1 testified that complainant was terminated because of poor performance.
For instance, S1 stated that complainant did not submit his property
analyses in a timely manner, costing the government money. Additionally,
S1 stated that complainant was listing properties to which the agency did
not have title and was not following up on �unlawful detained actions.�
S1 asserted that she counseled complainant about these items as did
other management officials. S1 additionally stated that complainant
would raise his voice to her and get �somewhat agitated� when asked
to complete forms over leave usage. Additionally, the Chief, Loan and
Property Management (M1) testified that complainant's performance �did
not satisfy the requirements of the position� and that complainant had a
�very short temper� and was prone to �unprofessional behavior.� Further,
the Loan Guaranty Officer (L1), S1's immediate supervisor, stated that
complainant's termination resulted not from sexual harassment, but
from complainant's poor performance. L1 described the same problems
with complainant's work as S1 and M1. The Director of the San Diego
Regional Office (D1) asserted that complainant's termination was not a
product of sex discrimination, but was instead due to complainant's poor
performance, his failure to come to work, and his�disruptive� nature.
Based on the foregoing, the agency found that the agency articulated
legitimate, nondiscriminatory reasons for its action. The FAD concluded
that the record is devoid of evidence of discriminatory animus on the
part of management concerning complainant's failure to be converted to
full-time.
As to issue (2), the FAD found that there is disagreement in the record
among the witnesses as to whether the sexually harassing conduct occurred
as charged. The FAD noted that complainant's allegations do not involve
any overt conduct by S1, other than looking him �up and down� allegedly
staring at his crotch, and leering at him, all allegations that lend
themselves to subjective interpretation.
On appeal, complainant contends generally that the agency �has exaggerated
several times items which are not true.� Complainant additionally
states that �other pertinent facts have not been addressed.� The agency
requests that we affirm its FAD. As an initial matter we note that,
as this is an appeal from a FAD 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).
As to issue (1), we note that the allocation of burdens and order of
presentation of proof in a Title VII case alleging disparate treatment
discrimination is a three step procedure: complainant has the initial
burden of proving, by a preponderance of the evidence, a prima facie case
of discrimination; the burden then shifts to the employer to articulate
some legitimate, nondiscriminatory reason for its challenged action; and
complainant must then prove, by a preponderance of the evidence, that
the legitimate reason offered by the employer was not its true reason,
but was a pretext for discrimination. McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Here, assuming arguendo that complainant established
a prima facie case of sex discrimination, the agency has nevertheless
articulated legitimate, nondiscriminatory reasons for its action, which
complainant has failed to show, by a preponderance of the evidence,
are pretextual,<0>
As to issue (2), we note that based on the standards set forth in Harris
v. Forklift Systems, Inc., 510 U.S. 17 (1993), in order to prevail on a
claim of harassment, complainant must prove that: (1) he was subjected to
harassment that was sufficiently severe or pervasive to alter the terms or
conditions of employment and create an abusive or hostile environment; and
(2) the harassment was based on his membership in a protected class. See
EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris
v. Forklift Systems, Inc. at 3, 6; Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997). Assuming arguendo the
truth of complainant's version of the facts, the evidence in the record
is insufficient to support a finding that management's actions towards
complainant were sufficiently severe or pervasive to alter the terms or
conditions of employment and create an abusive or hostile environment.
See Andrus v. Department of the Treasury, EEOC Appeal No. 01A45546
(December 13, 2004) (finding that an allegation that a manager gazed and
stared at an employee was insufficient to state a claim of harassment);
Cobb v. Department of Veterans Affairs, EEOC Appeal No. 01A35144 (July 26,
2004) (finding that allegations that a manager continuously mentioned an
employee's "beautiful smile" and stared and watched her with a look of
"desire" while she was in a bent over position, did not rise to the level
of harassment sufficient to trigger a Title VII violation). Accordingly,
after a careful review of the record, 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:
May 24, 2005
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations
0 1Specifically, complainant contends that his supervisor (S1) harassed
him on several occasions in her office. For instance, S1 repeatedly
stared/leered at his �private area,� and engaged complainant in
non-work-related conversations, such as about her deceased husband.
Complainant asserts that he never complained to S1 or to any other
management official about S1's harassment out of fear that he might
be terminated.
0 2We note that complainant concedes that he was counseled concerning his
job performance by various managers on different occasions. See Report
of Investigation (ROI), Complainant's Affidavit, 6-11. Additionally,
complainant concedes that he once shouted at S1 and called her a liar.
Id. at 7. Complainant indicates however, that his behavior may have
been due to medication he was taking. Complainant also indicates that
S1 picked on everybody, not just himself. He further states �That's
why that section had a 50, 60 percent attrition rate.� Id., at 16.