0120063014
10-11-2007
Donald R. Barnard, Complainant, v. Charles F. Conner, Acting Secretary, Department of Agriculture, Agency.
Donald R. Barnard,
Complainant,
v.
Charles F. Conner,
Acting Secretary,
Department of Agriculture,
Agency.
Appeal No. 01200630141
Agency Nos. ARS-2003-01265 and ARS-2004-01266
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's February 9, 2006 final decision concerning
his equal employment opportunity (EEO) complaint alleging employment
discrimination. The appeal is subject to our de novo review under 29
C.F.R. � 1614.405(a). Complainant alleged that the agency retaliated
against him for prior protected EEO activity2 when:
1. On September 29, 2003, the agency allowed false and incriminating
information about him to be placed on an official agency document known
as an ARS-4253;
2. On April 20, 2003, the agency denied his request for extramural funds
from Stratacor, Inc.;
3. On September 4, 2003, the agency summarily removed him as an Authorized
Departmental Officer's Designated Representative (ADODR) on two Specific
Cooperative Agreements (SCAs) with the University of Florida;
4. On October 21, 2003 and January 15, 2004, the agency denied him travel
authority and excluded him from professional meetings related to his
research;
5. On February 3-5, 2004, the agency sent another Mosquito and Fly
Research Unit (M&FRU) Representative to the Fifth National Conference
on West Nile Virus;
6. On January 29, 2004, the agency assigned a technical support staff
member for the Complainant's research who was selected without his
input;
7. On February 13, 2004, the agency issued him a Memorandum of Counseling;
and
8. On February 23, 2004, the agency gave him a "Fully Successful" rating
on his performance evaluation which he believes is unduly low.4
At the conclusion of the investigation, the agency provided complainant
the option of choosing to have a hearing before an EEOC Administrative
Judge or having the agency issue a decision without a hearing (Final
Agency Decision or FAD) . Complainant elected to have the agency issue
a decision. The agency concluded that complainant had failed to meet
his burden of proving that management engaged in unlawful discrimination
or harassment.
On appeal5, complainant argues that the FAD must be reversed. He insists
that management's actions evince clear retaliation because it was
against those very management officials that complainant filed prior
EEO complaints. He further maintains that the prextextual nature of
management's actions is shown in the fact that they need to discredit
the EEO complaints that complainant had filed against them. He also
explains that with regard to claim 1, he insists that he was retaliated
against because the management officials who carried out the action
without ever notifying him were those against whom he had filed EEO
complaints in the past. Two fellow scientists, he states, violated
the same regulation/policy that management accused him of violating, but
these other scientists did not receive the same treatment he received.
With regard to claim 7, complainant points out that there is a temporal
connection between the date of his prior complaint (June 18, 2003)
and the earliest date cited on the Memorandum of Counseling (October 31,
2003). Complainant suggests that the discipline had no real basis because
management never apprised him of any performance problems. The discipline
was subjective and carried out clearly as an effort to punish him for
his prior protected acts. Lastly, with regard to claim 8, complainant
argues that prior to and after the CY 2003 performance evaluation, he
received "Exceeds Fully Successful" ratings. He states that the only
way to explain the anomaly in ratings is that management intentionally
took action to prevent him from a securing a higher rating.
Having reviewed the record and complainant's arguments on appeal, we
are not persuaded that the agency's final decision must be overturned.
Even assuming that the alleged acts are sufficiently severe and pervasive
to have created a hostile work environment, complainant has not shown
that management's actions were motivated by a retaliatory animus.
Although complainant claims to have supplemented his appeal statement with
information acquired through FOIA, we find that he has made assertions
that lack objective, factual support. In other words, his arguments are
more his statements of belief than actual proof that management acted
in a retaliatory manner. We cannot make a finding of discrimination on
such inadequate evidence.6 Therefore, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.
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
October 11, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 The record does not identify under what statute complainant's prior
protected activity arose, but the agency does not contest that complainant
engaged in prior protected activity.
3 Complainant raised claim 1 in Complaint No. ARS-2003-01265.
4 Complainant raised claims 2-8 in Complaint No. ARS-2004-01266.
5 We note that the agency did not submit a statement in opposition to
the appeal.
6 Given that many of complainant's arguments directly dispute the
agency's factual assertions, we note that complainant may have benefited
from a hearing before an EEOC Administrative Judge, who could have stood
as a neutral trier of fact and made appropriate credibility determinations
at a hearing. However, complainant exercised his right to not have a
hearing, opting instead for a final agency decision.
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0120063014
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120063014