01995686
08-09-2000
Danny Weekley, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Danny Weekley v. Department of Veterans Affairs
01995686
August 9, 2000
.
Danny Weekley,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01995686
Agency No. 96-0211
DECISION
Danny Weekley (complainant) timely initiated an appeal from a final
agency decision (FAD) concerning his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. � 2000e et seq. and Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1> The
appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to
be codified at 29 C.F.R. � 1614.405). Complainant alleged that he was
discriminated against on the bases of race/color (White), sex (male),
disability (torn knee cartilage), and reprisal (prior EEO activity)
when he was harassed by the Industrial Hygienist (IH).
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Carpenter, WG-9, at the agency's Medical Center in Birmingham,
Alabama. Complainant was also serving as a union safety officer.
Believing he was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on August 15, 1995,
alleging harassment by IH. Complainant alleged that IH asked complainant
to leave his office during a May 16, 1995 meeting on safety issues,
degraded and talked down to him in the presence of other employees,
failed to notify him of meetings and events involving the union safety
office, failed to give him safety documents that he gave to the other
union officers, and wrote him up for unsafe work practices in an effort
to downgrade his performance appraisals. Complainant also alleged that IH
called him a �white racist� in a January 1994 meeting and that complainant
therefore felt that the later incidents were racially-motivated. At
the conclusion of the investigation, complainant was informed of his
right to request a hearing before an EEOC Administrative Judge (AJ) or
alternatively, to receive a final decision by the agency. Complainant
requested a hearing and the case was assigned to an AJ.
The AJ subsequently recommended dismissal of the case based on the fact
that a Notice of Intent to issue Findings/Conclusions without a hearing
that was sent to complainant by the AJ, was returned due to the expiration
of complainant's forwarding order. It appears from the record that the AJ
found that this justified a recommended dismissal based on the Commission
regulation that allows dismissal if the complainant cannot be located and
has not responded within 15 days to a notice of proposed dismissal sent
to his address. See 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified
and hereinafter referred to as 29 C.F.R. � 1614.107(a)(6)). The agency,
finding that there was sufficient information in the record to make a
determination on the merits, issued a FAD finding no discrimination.
In its FAD, the agency first found that the �white racist� comment
was not direct evidence of discriminatory intent. The agency then
found that complainant established a prima facie case of race and sex
discrimination in regard to the May 16, 1995 incident, but that IH had a
legitimate non-discriminatory reason for acting as he did. Specifically,
IH testified that complainant was fabricating occupational safety and
health incidents in the presence of the OSHA compliance officer in an
attempt to discredit the agency's safety program. The agency concluded
that complainant failed to establish that this articulation was a pretext
for race or sex discrimination.
The agency next noted that complainant failed to establish a prima
facie case of disability or reprisal discrimination. The agency found
that complainant failed to establish that he had an impairment that
substantially limited a major life activity. Furthermore, the agency
concluded that while complainant had testified against management in EEO
investigations, IH did not know of the activity, as he was not involved
in the investigations.
The agency also concluded that complainant did not establish a prima
facie case on any basis in regard to his other allegations. The agency
noted that complainant neither indicated any specific meetings or events
about which he lacked information nor identified any other employee who
failed to follow safety procedures but was not written up.
Finally, the agency determined that complainant failed to establish a
prima facie case of harassment, noting that the difficulties between IH
and complainant stemmed from their conflicts over safety issues, and
not from a discriminatory motive on the part of IH. It is from this
FAD that complainant now appeals.
Complainant raises no contentions on appeal and the agency asks that
its FAD be affirmed.
FINDINGS AND ANALYSIS
As an initial matter, we find that the AJ incorrectly recommended
dismissal based on complainant's failure to respond to the AJ's Notice
of Intent. The AJ never sent complainant a notice of proposed dismissal,
as required by 29 C.F.R. � 1614.107(a)(6). However, the agency correctly
determined that there is sufficient information in the record to allow
for a determination on the merits of the complaint and, as complainant
does not request a hearing on appeal, we will continue with our analysis
of the merits of his complaint.
Before turning to complainant's specific allegations, we note that even
assuming IH called complainant a �white racist� in January 1994, the
comment is not direct evidence that the acts at issue were motivated
by discriminatory animus. Commission guidance states that �[d]irect
evidence of discriminatory motive may be any written or verbal policy
or statement made by a respondent that on its face demonstrates a bias
against a protected group and is linked to the complained of adverse
action.� (emphasis added). See Revised Enforcement Guidance on Recent
Developments in Disparate Treatment Theory, EEOC No. 915.002, at 6 (July
14, 1992). Here, although the record establishes that IH did state
that complainant was a �white racist� or something along those lines,
there is nothing to link this January 1994 statement with the actions
complained of in the current complaint. While we find that this evidence
is not direct evidence of discriminatory motive, it will be considered
along with any other indirect evidence in the record.
Disparate Treatment
Although complainant noted on the complaint form that he was alleging
harassment, a review of his affidavit indicates that he also felt that he
was treated differently than similarly situated individuals outside his
protected groups. We therefore begin with an analysis of this disparate
treatment claim.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Prewitt v. United States Postal Service, 662 F.2d
292, 310 (5th Cir. 1981); and Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to reprisal
cases), the Commission agrees with the agency that complainant failed
to establish discrimination by a preponderance of the evidence.
In so finding, we note that while complainant may have established
a prima facie case of discrimination in regard to the May 16, 1995
incident, he failed to establish by a preponderance of the evidence that
IH's explanation for his behavior was a pretext for discrimination.<2>
IH's testimony that he asked complainant to leave due to complainant's
antagonistic behavior is supported by the testimony of two witnesses.
Both the black female union officer who attended the meeting and the
OSHA compliance officer testified that IH and complainant got into a
disagreement over safety issues and that the discussion became very
antagonistic. The only evidence provided by complainant that suggests a
discriminatory motivation is the �white racist� comment made by IH more
than a year prior to the event at issue. This comment, standing alone,
is not enough to establish that the agency's explanation is a pretext
for discrimination.
In regard to complainant's claim that IH reported him for committing
unsafe work practices in an effort to affect his performance appraisal,
complainant failed to establish a prima facie case of sex, disability or
reprisal discrimination in that he failed to name any similarly situated
employees who IH did not report for violating safe work practices.
Moreover, complainant did not provide any other evidence that raised an
inference of discrimination on these bases. While the �white racist�
comment may be enough to raise an inference of race discrimination in
any action taken by IH against complainant, IH articulated a legitimate
nondiscriminatory reason for having written complainant up for unsafe work
practices, namely, that complainant was not following safety procedures in
dealing with asbestos. Complainant failed to establish by a preponderance
of the evidence that this explanation was a pretext for discrimination.
Finally, we agree with the agency that complainant failed to establish
a prima facie case of discrimination on any basis in regard to
the remaining issues. Complainant failed to indicate any particular
meetings or information that IH neglected to give him. Complainant did
not describe any specific incidents during which IH degraded him in front
of other employees, other than the May 16, 1995 incident discussed above.
Moreover, even assuming that complainant established a prima facie case
of discrimination in regard to these issues, the evidence in the record
indicates that the bad relationship between IH and complainant stemmed
from their conflicts over safety issues. Several witnesses, including
IH and complainant, testified that the two men had different views
about safety issues and constantly were in conflict for that reason.
Again, the �white racist� comment is not sufficient to establish that
it was race, rather than a difference of opinion over safety issues,
that led to conflict between IH and complainant.
Harassment
Turning to complainant's claim of harassment, a complainant may assert a
Title VII cause of action for harassment if the discriminatory conduct
was so severe or pervasive that it created a hostile work environment
on the basis of his race, color, gender, religion, national origin
or retaliation. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993); 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). Moreover,
Commission guidance establishes that this formulation applies to
allegations of disability harassment as well. See Enforcement Guidance
on Harris v. Forklift Systems, Inc., EEOC No. 915-002 (March 8, 1994).
Here, complainant has failed to provide any competent evidence to
establish that the actions taken by IH were motivated by his sex,
disability or prior EEO activity. Several witnesses testified that the
conflict between IH and complainant stemmed from their disputes over
safety issues. While it seems that both IH and complainant partially
attributed actions of the other to racial animus, complainant provided
insufficient evidence to establish that it was his race, rather than
his attempts to effect the safety policy positions of IH, that led to
the actions at issue.
Accordingly, after a thorough review of the record, including arguments
and evidence not addressed in this decision, we AFFIRM the agency's
finding of no discrimination.
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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 9, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
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 Because the agency articulated a legitimate nondiscriminatory reason
for its actions, we will assume for the purpose of this discussion that
complainant established a prima facie case of race, sex, disability and
reprisal discrimination in regard to this issue. See United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711 (1983);
Valencia v. United States Postal Service, EEOC Petition No. 03990094
(March 16, 2000)