01A13728
08-30-2002
Cosmo L. Paone, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation (United States Coast Guard), Agency.
Cosmo L. Paone v. Department of Transportation
01A13728
August 30, 2002
.
Cosmo L. Paone,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation
(United States Coast Guard),
Agency.
Appeal No. 01A13728
Agency Nos. DOT-2-98-2139 and 2-00-2088
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaints of unlawful employment discrimination
in violation of 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.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Chief, Cataloging Branch, GS-13, at the agency's, Engineering
Logistics Center (ELC), in Baltimore, MD. Complainant sought EEO
counseling and filed a formal complaint on August 13, 1998, and a second
formal complaint on July 7, 1999, alleging that he was discriminated
against on the basis of reprisal for prior EEO activity when:
DOT 2-98-2139
(1) Complainant was informed in April 1998 that a private contractor
had been hired to intervene in complainant's Branch to conduct �Conflict
Resolution� despite the fact that many other Branch Chiefs faced numerous
complaints and had not been subjected to this action.
The Executive Director, ELC, strategically planned to meet with
complainant while contact was made with complainant's employees to
solicit complaints against complainant in his absence.<1>
DOT 2-00-2088
Complainant was notified by management on April 19, 1999 that ELC
Executive Director and the Personnel Specialist had approved the
reassignment of a billet from complainant's branch to another office.
(4) Complainant was called into his supervisor's office to discuss
a �confrontational� e-mail, and informed complainant that the e-mail
would have an effect on complainant's performance evaluation.
In its FAD, the agency concluded that complainant had failed to establish
a prima facie case as to claims 1 and 2; and as to claim 3, had failed
to show pretext or discriminatory animus. The FAD concurred with
the agency's dismissal of claim 4, which had been previously dismissed
because it alleged a preliminary step to the taking of a personnel action.
The record reflects that complainant's prior EEO activity, which alleged
age discrimination, was filed in November 1996.
CONTENTIONS ON APPEAL
On appeal, complainant sets forth facts and argument in support of
his appeal, and takes exception to findings in the FAD. The agency
contends that the FAD is supported by the preponderance of the evidence
and correct as a matter of law.
ANALYSIS AND FINDINGS
Claims of reprisal discrimination are examined under the tripartite
analysis first enunciated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). To establish a prima facie case of reprisal
discrimination, the complainant must show that (1) he engaged in prior
protected activity, (2) the acting agency official was aware of the
protected activity, (3) he was subsequently disadvantaged by an adverse
action, and (4) there is a causal link between the protected activity
and the adverse action. Simens v. Department of Justice, EEOC Request
No. 05950113 (March
28, 1996) (citations omitted). The causal connection may be shown by
evidence that the adverse action followed the protected activity within
such a period of time and in such a manner that a reprisal motive is
inferred. Id.
The Commission has stated that adverse actions need not qualify as
"ultimate employment actions" or materially affect the terms and
conditions of employment to constitute retaliation. Lindsey v. United
States Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC
Compliance Manual, No. 915.003 (May 20, 1998)). Instead, the statutory
retaliation clauses prohibit any adverse treatment that is based upon a
retaliatory motive and is reasonably likely to deter the charging party
or others from engaging in protected activity. Id.
DOT 2-98-2139
Claim 1- Conflict Resolution. Complainant alleged that he was
discriminated against when the agency hired a private contractor to
provide conflict resolution services to employees in complainant's branch.
The agency submitted that four females in complainant's branch brought
to the attention of management some deep-seated resentment towards
complainant, and complained of unfair and discriminatory treatment by
complainant. The agency contracted with a private conflict resolution
specialist to resolve the problems and thereby avoid EEO complaints.
The specialist came into the branch and conducted some conflict resolution
exercises, however, her conflict resolution plan was never carried out.
The agency submitted that the plan was thwarted by complainant's claim
that his constitutional rights were being violated. Complainant claimed
that during the exercises he was informed that an employee had initiated
an EEO complaint against him, and he stated that he could no longer
discuss the situation outside of the EEO process because he needed to
protect himself.
Complainant has not established a prima facie case of reprisal
discrimination because he had not demonstrated that the agency's action
was reasonably likely to deter the complainant or others from engaging in
protected activity. Further, complainant has not proffered any evidence
that he was disadvantaged by the action of the agency in contracting
with a conflict resolution specialist, or that there was a causal
link between his prior protected activity and the hiring of a conflict
resolution specialist. We find that the hiring of the specialist to
try to resolve problems and to avoid EEO complaints was not based upon
a retaliatory motive.
Claim 2- Meeting with the Executive Director. Complainant alleged that
he was told to meet with the Executive Director (ED) at an exact time,
as a ploy to have him out of his workplace, in order for telephone calls
to be made to employees from EEO staff, and an �illegal flyer� to be
distributed to his employees soliciting complaints against complainant.
The flyer stated that the EEO counselor would be available to everyone who
wished to talk about issues and/or concerns that the employee might have,
and listed the available locations, times, and dates. The flyer did not
specifically mention complainant or that the EEO counselor was seeking
out individuals who may have complaints against complainant. Complainant
alleged that the ED orchestrated the entire incident. ED stated that the
EEO staff person was instructed to retrieve the flyers because management
had not approved them. ED also stated that the EEO counselor was trying
to resolve the situation before it got out of hand; but in retrospect,
the EEO counselor should not have been involved. Concerning the phone
calls, the ED submitted that the EEO counselor may have been investigating
the EEO complaint filed by one of complainant's employees.
Although there is a dispute as to whether ED was aware of complainant's
prior EEO activity, there is no dispute that complainant's prior EEO
activity occurred approximately one and a half years prior to the meeting.
Complainant has not demonstrated that the issuance of the flyers or the
making of phone calls were causally linked with his earlier protected
activity.
DOT 2-00-2088
Claim 3- Billet. The Command was involved in a Most Efficient
Organization (MEO) plan, which, in part, looks at positions and tries to
determine if the organization is getting the best use of the position.
The plan required review of all vacant positions and the moving of
the position, if needed, to fill workload needs. After an employee's
resignation from complainant's branch, complainant's first line supervisor
(S1) and his second line supervisor (S2) moved the vacant position
to another branch. The agency submitted that based on a workload
analysis by another branch chief, the other branch had a greater need
for the billet. The agency also submitted that complainant's branch
had sufficient resources to complete its mission. Complainant disputes
that his branch was not impacted adversely, and that he had accomplished
all tasks. Complainant alleged that he was not consulted and that his
branch was being dismantled in retaliation for his prior EEO activity.
Complainant further stated that the reasons submitted by the agency are
a �hoax.�
The agency has articulated a legitimate, nondiscriminatory reason for its
action, and while complainant disagrees with the agency's contentions,
his unsubstantiated beliefs do not show pretext. Therefore, we find that
complainant has not met his burden to prove by preponderant evidence that
the agency's reasons for its actions were a pretext for discrimination.
Claim 4- E-mail.
The Commission concurs with the agency's determination that this claim
was properly dismissed.
The crux of the claim is that complainant was told that a
�confrontational� e-mail would have an effect on his performance
evaluation. We find that merely because an action has been proposed which
purportedly would adversely affect complainant, does not indicate that
complainant is, in fact, aggrieved. Complainant has not demonstrated
the e-mail incident caused him any personal loss or harm with respect
to a term, condition, or privilege of employment.
On appeal, complainant contends that S2 used the �confrontational�
e-mail to create an incident and to further intimidate complainant.
Complainant states that judging from S2's �tone,� and based on his
experience with S2, he knew that S2 was going to use a meeting with
complainant to discuss the e-mail for purposes of retaliating against
complainant for prior EEO activity. Complainant stated that the e-mail
was no more confrontational than most of the e-mails at the agency.
The record reflects that S2 might have been concerned that the e-mail had
gone to too many people. Other than his subjective opinion, complainant
has not proffered any substantive arguments demonstrating the manner
in which S2 used the e-mail incident to intimidate complainant due to
prior EEO activity, or that the incident was reasonably likely to deter
complainant or others from engaging in protected activity.
CONCLUSION
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 find that complainant
failed to meet his burden of presenting sufficient evidence to prove that
the agency's actions were related to his prior EEO activity, or that a
discriminatory animus motivated the agency actions. 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
August 30, 2002
Date
1 Complainant also raised five additional claims which were dismissed.
Complainant appealed the dismissal of two claims to the Commission.
The agency's decision was affirmed. See Paone v. Department of
Transportation, EEOC Appeal No. 01995069 (October 27, 1999).