01a05617
03-29-2001
David J. Burke, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
David J. Burke v. Department of Veterans Affairs
01A05617
March 29, 2001
.
David J. Burke,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A05617
Agency No. 983393
DECISION
David J. Burke (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 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleged
that he was discriminated against on the basis of race (White) and, in
later incidents, subjected to retaliation for prior EEO activity when,
starting in December 1997, he was harassed and ultimately reassigned
from the position of Police Chief to that of Management and Program
Analyst, effective September 28, 1998. Complainant described over fifty
incidents in support of his harassment claim, including incidents of
unfair criticism and assignments and interference with the performance
of his job.
The record reveals that during the relevant time, complainant was employed
as a Police Chief, and later as a Management and Program Analyst and then
an Administrative Officer, Clinical Service Line, at the agency's Houston,
Texas Medical Center. Believing he was a victim of discrimination,
complainant sought EEO counseling and subsequently filed a formal
complaint on July 20, 1998. At the conclusion of the investigation,
complainant was informed of his right to request a hearing before an EEOC
Administrative Judge or, alternatively, to receive a final decision by the
agency. Complainant requested that the agency issue a final decision.
In its FAD, the agency first noted that it had previously notified
complainant of the dismissal of thirteen of his allegations. The agency
concluded that these allegations involved incidents which did not
directly affect complainant and were simply background evidence, rather
than additional claims of discrimination.
The agency went on to find that although complainant termed his complaint
one of �harassment,� it actually involved numerous allegations of unfair
treatment. The agency determined that the complaint should be analyzed
under a disparate treatment framework.
The agency then noted that complainant established a prima facie case of
retaliation and race discrimination in regard to his reassignment to the
position of Management and Program Analyst. The agency noted that this
reassignment occurred less than three months after management became aware
that complainant had contacted an EEO Counselor and that the individual
who replaced complainant as Police Chief was of a different race/color.
The agency further concluded that complainant failed to establish a
prima facie case of reprisal in regard to his earlier claims of unfair
treatment, criticism and assignments, as they occurred before he first
contacted an EEO Counselor. The agency was unable to determine whether
complainant established a prima facie case of race discrimination in
regard to these earlier allegations, noting that there were no similarly
situated individuals with which to compare him.
The agency went on to articulate legitimate non-discriminatory reasons
for its actions. Specifically, the agency noted that complainant
was reassigned to the position of Management and Program Analyst (Y2K
coordinator) for two reasons. First, he failed to implement the changes
in management procedures that the new Medical Center Director (MCD)
wished to implement due to the fact that his � excessively authoritarian�
management style was the opposite of the MCD's �team-building� management
style. Complainant was also having problems in his relationship with the
union. Second, complainant had significant administrative skills which
management believed would be useful for the Y2K coordinator position.
The agency noted that there were also legitimate non-discriminatory
reasons for the other actions cited by complainant. Complainant was
told to discontinue reporting to the MCD's morning meeting because MCD
was interested mainly in patient care issues and felt that complainant's
report on police matters could be made to the Associate Medical Center
Director (AD) in a different way. Similarly, management requested that
complainant officially announce that a lower-level official had authority
to grant leave because in complainant's absence his employees believed
there was no one who could approve leave.
The agency concluded that complainant failed to establish that its
explanations were a pretext for discrimination or retaliation.
On appeal, complainant essentially reiterates claims raised during the
investigation. He argues that the agency's position that it took the
actions it did due to complainant's sub-standard duty performance is not
supported by the record. He also notes that MCD committed perjury when
he denied informing others that complainant had filed an EEO complaint.
Complainant also alleges that he recently received notification that his
current position is due to be �restructured, reduced or eliminated� and
asserts that this is another incident of reprisal.
In response, the agency requests that we affirm its FAD. The agency
notes complainant failed to provide sufficient probative evidence to
support his perjury charge.
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
that he was subjected to discrimination or retaliation by a preponderance
of the evidence. In reaching this conclusion, we note that even assuming
complainant established a prima facie case of race discrimination and
retaliation on all of his claims, he failed to establish that the agency's
articulated explanations were a pretext for discrimination or retaliation.
This would be the case even if those incidents procedurally dismissed
by the agency were to be included in the analysis.
In so finding, we note that while complainant alleges that because
there is no evidence of poor performance, the agency's actions cannot
be justified, a review of the record reveals that the agency based
its decisions not on a belief that complainant was performing poorly,
but on the belief that his management style did not mesh well with
that of the new Medical Center Director's style. The record supports
management's contention that complainant and MCD had opposing management
styles, complainant's being more �authoritarian,� while MCD preferred
a �team-building� approach. Although complainant notes that two other
high-level White employees�the Chief of Nursing Service and the Chief of
Staff-- were urged to step down from their positions due to a difference
in �management style� and that both were replaced with Black individuals,
this is insufficient to satisfy complainant's burden of establishing
discrimination by a preponderance of the evidence. Moreover, evidence in
the record suggests that the agency may have been motivated to reassign
complainant by the desire to appease the union, with whom complainant
had a troubled relationship. Indeed, several witnesses testified to
the existence of a rumor that complainant's poor relationship with the
union motivated the agency's actions.
Furthermore, complainant failed to establish by a preponderance of
the evidence that the other incidents described in his complaint were
motivated by his race or prior EEO activity. It appears from the record
that the arrival of a new Medical Center Director with a vastly different
management style than complainant's caused conflict between the two.
This conflict began when MCD initiated changes in the way the facility was
run, not requiring complainant's presence at the morning staff meetings,
for example, due to MCD's desire to concentrate on patient care issues
during these meetings. This conflict resulted in complainant's eventual
reassignment to a position which AD and MCD felt would allow him to use
his superior administrative skills in a way that would not interfere
with MCD's desire to encourage a team-building management approach
throughout the agency. There is insufficient evidence to establish that
the incidents described by complainant were motivated by discrimination
or retaliation, as opposed to this conflict in management style.
Assuming complainant intended to claim that the events he described
rose to the level of harassment on the basis of his race and prior EEO
activity, we again note that complainant failed to establish that the
agency's actions were motivated by his race or prior EEO activity.
Although complainant claims that MCD committed perjury when he denied
informing others of complainant's EEO activity, we note that there is no
evidence that this affected the outcome of the decision. Even assuming
MCD did mention to others that complainant had filed an EEO complaint,
this, without more, does not establish that the actions at issue were
motivated by complainant's race or EEO activity.
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 FAD.
As a final matter, we note that complainant raises, for the first time on
appeal, additional allegations of retaliation. Complainant is advised
that if he wishes to pursue, through the EEO process, these additional
allegations, he shall initiate contact with an EEO counselor within
fifteen days after he receives this decision. The Commission advises
the agency that if complainant seeks EEO counseling regarding the new
allegations within the above fifteen day period, the date complainant
filed the appeal statement in which he raised these allegations with the
agency shall be deemed to be the date of the initial EEO contact, unless
he previously contacted a counselor regarding these matters, in which
case the earlier date would serve as the EEO counselor contact date. Cf.
Qatsha v. Department of the Navy, EEOC Request No. 05970201 (January 16,
1998).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
March 29, 2001
Date