01971861
03-30-2000
Christopher Grasse, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Christopher Grasse v. Department of the Air Force
01971861
March 30, 2000
Christopher Grasse, )
Complainant, )
) Appeal No. 01971861
v. ) Agency No. AR000960673
) Hearing No. 380-96-8062X
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
)
DECISION
Complainant timely initiated an appeal from the agency's final decision
(FAD) concerning his equal employment opportunity (EEO) complaint of
unlawful employment discrimination on the bases of sex (male) and reprisal
(prior EEO activity), in violation of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> Complainant alleges
he was discriminated and retaliated against on the above-stated bases
when: (1) from May of 1994 through April of 1995 he was harassed in the
workplace; and (2) on April 24, 1995, he was removed from employment
during his probationary period. The appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. �1614.405).
For the following reasons, the Commission AFFIRMS the agency's FAD.
The record reveals that during the relevant time, complainant was employed
as a GS-05 Child Development Training and Curriculum Specialist Intern in
the Child Development Center (CDC) at the agency's Elmendorf Air Force
Base facility in Alaska. Under the terms of this Internship program,
Training and Curriculum Specialist Interns were hired for a two-year
period in the CDC, and at the end of that time qualified for permanent
positions with the agency. Complainant claims that he was harassed over
the course of his Internship by the CDC Manager (Manager), when he was:
(1) accused of time and attendance problems; (2) accused of abusing
several children and providing incorrect medication to a child under his
care; and (3) questioned about his interest as a male in the child care
field and his EEO activity. Complainant also claims he was terminated
by the Manager due to his sex and prior EEO activity. Believing he
was a victim of discrimination, complainant sought EEO counseling and,
subsequently, filed a formal complaint on April 18, 1995.
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 a hearing, the AJ issued a Recommended Decision
(RD) finding no discrimination. The AJ concluded that complainant
established a prima facie case of sex discrimination because he was the
only male CDC Intern and experienced a number of problems on the job,
including allegations of time and attendance problems and child abuse,
and being counseled about giving improper medication to a child, which
were not experienced by the similarly situated female Interns. The AJ
found that complainant established that as a whole, the conduct he was
subjected to was sufficiently severe and pervasive so as to create a
hostile working environment, and was primarily initiated by the Manager.
In addition, the AJ found that complainant established a prima facie case
of sex discrimination with regard to his termination in April of 1995,
as there were no similarly situated female Interns who were terminated.
Finally, the AJ found that complainant established prima facie cases
of reprisal regarding his treatment by the Manager and his termination,
as there was a sufficient nexus between complainant's protected activity
and the adverse agency actions.
The AJ then concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions, namely, that the Manager
initially counseled complainant due to problems over his time and
attendance and his criticism of the child care program at the facility.
Specifically, the Manager stated that she placed complainant in Absent
without Leave status because he took leave without securing the proper
supervisory approval, and also questioned his commitment to the training
program given his "negative attitude" due to his feeling that he was
not learning from the Internship. The Manager further stated that she
began steps to place complainant in a Performance Improvement Plan in
February of 1995 to require improvement in five specific areas of his
performance, but did not follow through due to complainant's termination.
In addition, the Manager documented three incidents of alleged child abuse
by complainant during his Internship period, and stated that although
two incidents could not be substantiated, one incident in which a child
was injured due to complainant's carelessness and inappropriate physical
restraint was substantiated by the facility's Family Advocacy Office with
corroborative testimony. The Manager further stated that complainant
was responsible for giving a child an improper dose of medication,<2>
and she testified that once she was notified about the substantiated
incident of complainant's child abuse/neglect, she had no choice but to
remove complainant from his position and subsequently terminated him.
The AJ further found that complainant failed to establish that more
likely than not, the agency's articulated reasons were a pretext to mask
unlawful discrimination/retaliation. In reaching this conclusion, the AJ
found that there was insufficient witness testimony and other evidence
to conclude that the Manager believed complainant was not suited to
work in the CDC due to his gender or in reprisal for prior EEO activity,
but rather that other job-related issues, such as his criticism of the
Internship program, his lack of training, deficiencies in his time and
attendance and a fully investigated and substantiated incident of child
abuse made him unsuited to work in the CDC. The agency's FAD implemented
the AJ's RD. On appeal, complainant restates arguments previously made
at the hearing. The agency responds by restating the position it took
in its FAD, and requests that we affirm its final decision.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. �1614.405(a)), all post-hearing factual findings by an
Administrative Judge 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). A finding that discriminatory intent did not exist is a
factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293
(1982).
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. The Commission finds that the
evidence of record establishes that despite complainant's allegations
of discrimination and retaliation, the agency articulated legitimate,
nondiscriminatory reasons for its treatment of complainant during his
Internship and his subsequent termination in April of 1995. In addition,
we agree with the AJ's finding that complainant failed to present evidence
that it was more likely than not that any of the agency's actions were in
retaliation for his prior EEO activity or were motivated by discriminatory
animus toward his sex. We thus discern no basis to disturb the AJ's RD.
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 FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (S1199)
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:
March 30, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2 We note that complainant does not contest the agency's allegation that
he gave an improper dose of medication to a child under his care.