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.