William D. Arnold, Complainant,v.R.L. Brownlee, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionApr 5, 2004
01A33060 (E.E.O.C. Apr. 5, 2004)

01A33060

04-05-2004

William D. Arnold, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.


William D. Arnold v. Department of the Army

01A33060

April 5, 2004

.

William D. Arnold,

Complainant,

v.

R.L. Brownlee,

Acting Secretary,

Department of the Army,

Agency.

Appeal No. 01A33060

Agency No. BPDWFO0103B0030

Hearing No. 110-A1-8587X-RR

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., Section

501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,

29 U.S.C. � 791 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 action.

The record reveals that complainant, a Firefighter Emergency Medical

Technician (EMT), GS-06, at the agency's U.S. Army Garrison, Fort

McPherson, Georgia, filed a formal EEO complaint on March 14, 2001,

alleging that the agency had discriminated against him on the bases of

race (African-American), disability (impairment: post traumatic stress

disorder), age (D.O.B. November 20, 1950), and in reprisal for prior EEO

activity (arising under the ADEA and the Rehabilitation Act) when, on

May 7, 1999, complainant was denied reassignment to the B shift at Fort

Gillem, and instead was reassigned to Fort McPherson, and was harassed

for filing EEO complaints.

At the conclusion of the investigation, complainant received a copy of the

investigative report and requested a hearing before an EEOC Administrative

Judge (AJ). Following the completion of complainant's case in chief

at the hearing, the AJ issued a decision finding no discrimination.<1>

The AJ found that complainant failed to establish a prima facie case of

race or disability discrimination, but that he did establish a prima facie

case of discrimination on the bases of age and reprisal.<2> Nevertheless,

the AJ found that complainant failed to establish that the legitimate

nondiscriminatory reasons articulated by the agency for complainant's

reassignment were pretextual. The reasons were articulated by the agency

in a memorandum dated May 13, 1999, written by the Directorate of Public

Safety, stating that the decision was made �based on the facts that would

be best for [complainant's] health and concerns, the other firefighters,

and the organization as a total.� The Directorate of Public Safety

documented that �because of his statements and his proclaimed condition

that [he] felt it was best to remove him from the environment completely,

that is away from Fort Gillem.� The AJ also found that complainant

failed to establish a prima facie case of harassment.

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ will be upheld if supported by substantial evidence in the record.

Substantial evidence is defined as �such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.� Universal

Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted). A finding regarding whether or not discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held.

A claim of disparate treatment based on indirect evidence is examined

under the three-part analysis first enunciated in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, he

must first establish a prima facie case of discrimination by presenting

facts that, if unexplained, reasonably give rise to an inference of

discrimination, i.e., that a prohibited consideration was a factor in the

adverse employment action. Id. at 802; Furnco Constr. Corp. v. Waters,

438 U.S. 567 (1978); Heyman v. Queens Village Comm. for Mental Health

for Jamaica Community Adolescent Program, 198 F.3d 68 (2d. Cir. 1999)

(analyzing a disparate treatment claim under the Rehabilitation Act);

Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979) (applying McDonnell

Douglas to ADEA cases); Hochstadt v. Worcester Foundation for Experimental

Biology, Inc., 425 F. Supp. 318 (D. Mass.), aff'd 545 F.2d 222 (1st

Cir. 1976) (applying McDonnell Douglas to reprisal cases). The burden

then shifts to the agency to articulate a legitimate, nondiscriminatory

reason for its actions. Texas Dep't of Community Affairs v. Burdine,

450 U.S. 248, 253 (1981). Once the agency has articulated such a reason,

the question becomes whether the proffered explanation was the true

reason for the agency's action, or merely a pretext for discrimination.

St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511 (1993). The burden

of persuasion, by a preponderance of the evidence, remains at all times

on complainant. Burdine, 450 U.S. at 256.

Assuming arguendo that complainant has established a prima facie case

of discrimination on the bases of race, age, disability, and reprisal,

the Commission finds that the agency met its burden of articulating

legitimate, nondiscriminatory reasons for denying complainant reassignment

to the B shift at Fort Gillem, and instead reassigning complainant

to Fort McPherson. Complainant had written memoranda and voiced

numerous complaints about various co-workers and supervisors on both

the A Shift and the B Shift at Fort Gillem. Complainant emphasized

that he has suffered from stress and increased blood pressure as a

result of the discrimination and harassment that he allegedly endured.

While the Commission gathers from these complaints that complainant

was unhappy at Fort Gillem, we do not find that he has proven that the

agency's actions were motivated by retaliatory or discriminatory animus

on the bases of race, age or disability. However, because complainant

had clearly shown that he was unhappy with a number of co-workers and

supervisors at Fort Gillem, the agency found that transferring complainant

to Fort McPherson would be a logical solution. The Commission finds

that complainant did not prove, by a preponderance of the evidence,

that the agency's articulated reasons were not its true reasons, but

were a pretext for unlawful discrimination on the bases of race, age,

disability, or retaliation.

Finally, under the standards set forth in Harris v. Forklift Systems,

Inc., 510 U.S. 17 (1993), complainant's claim of harassment must fail.

See Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 6

(March 8, 1994). A prima facie case of harassment is precluded based on

our finding that complainant failed to establish that any of the actions

taken by the agency were motivated by his race, age, disability or prior

EEO activity. See Oakley v. United States Postal Service, EEOC Appeal

No. 01982923 (September 21, 2000).

After a careful review of the record, the Commission finds that the AJ's

findings of fact are supported by substantial evidence in the record and

that the AJ's decision referenced the appropriate regulations, policies,

and laws. 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 (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

April 5, 2004

__________________

Date

1At the close of complainant's case in chief,

the agency moved for a directed verdict. The AJ granted the agency's

motion. The Federal Rules of Civil Procedure provide for a directed

verdict under the following circumstances:

If during a trial by jury a party has been fully heard on an issue and

there is no legally sufficient evidentiary basis for a reasonable jury

to find for that party on that issue, the court may determine the issue

against that party and may grant a motion for judgment as a matter of

law against that party with respect to a claim or defense that cannot

under the controlling law be maintained or defeated without a favorable

finding on that issue.

Fed. R. Civ. P. 50(a). There is no jury involved in the adjudication

of an EEO complaint at the administrative level; therefore, there is no

provision for directed verdicts. Nevertheless, we find that the AJ's

decision relies on the relevant facts, and is well-grounded in the laws

under which the complaint was filed.

2Although in her original decision, issued on February 27, 2003, the

AJ found that complainant did not establish a prima facie case of age

discrimination, on that same day, the AJ issued an addendum to her

decision, finding that complainant had established a prima facie case

of age discrimination.