01983411
08-26-1999
Erik M. Holst, Appellant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency
Erik M. Holst v. Department of Agriculture
01983411
August 26. 1999
Erik M. Holst, )
Appellant, )
) Appeal No. 01983411
v. ) Agency No. UG9801
)
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency )
)
DECISION
INTRODUCTION
Appellant timely filed an appeal with the Equal Employment Opportunity
Commission (Commission) from a final agency decision concerning his
grievance against the agency alleging retaliation for his exercise of
protected activity under Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. �2000e et seq. Accordingly, the appeal is accepted
in accordance with EEOC Order No. 960.001.
ISSUE PRESENTED
The issue on appeal is whether the agency properly found that appellant
failed to establish that the agency's actions were motivated by
reprisal.
BACKGROUND
Appellant filed a grievance on October 14, 1997, alleging retaliation
for his participation in EEO and union activities<1> when in February
1997, management intentionally set him up to fail by re-assigning him to
a Resource Assistant position for which he believed he was not trained;
when the supervisor failed to provide him training for this position;
and the supervisor failed to assign a co-worker to cover his assignments
while he was on leave for three weeks in September, 1997.<2>
Appellant learned in February 1997, that the Resource Assistant
position he was being transferred to included switchboard duties.
He threatened to file an EEO complaint alleging discrimination based
on physical disability (hearing impairment) if not granted reasonable
accommodation.<3> Appellant was relieved of switchboard duties but
states his threat resulted in the alleged retaliation.<4>
In a Step 3 grievance decision, the agency found that appellant failed
to establish a prima facie case of reprisal. The agency stated that
appellant's re-assignment was the result of a Memorandum of Understanding
(MOU) Placement Plan negotiated by the agency and the union; that union
representatives were present during implementation of the plan; and that
two funded vacancies at appellant's grade level existed for his directed
re-assignment: Personnel Assistant, for which he was not qualified,
and the Resource Assistant position.
The agency stated that appellant's new supervisor made reasonable
efforts to provide training. The agency stated that the supervisor
developed an Individual Development Plan with appellant, placed him
in one formal training session, and informed appellant of experienced
members of his team who were willing and able to assist him. The agency
stated that the supervisor's failure to arrange for back-up does not
violate the Master Agreement or any law, rule or regulation, and that for
anyone going on vacation, their workload awaits them on their return.
The agency further stated that the supervisor managed twenty employees
located in multiple sites<5> as well as an additional twenty employees
whose supervisor had recently left, and that under these circumstances
it is not surprising that she could not supervise employees as closely
as she might have liked.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.401(c) provides that a grievant may appeal
to the Commission from a final decision of the agency, the arbitrator
or the Federal Labor Relations Authority on a grievance when an issue of
employment discrimination was raised in a negotiated grievance procedure
that permits such issues to be raised.
In order to establish a prima facie case of discrimination for an
allegation of reprisal, appellant must show: 1) that he engaged in
protected activity, e.g., participated in a Title VII proceeding; 2)
that the alleged discriminating official was aware of the protected
activity; 3) that he was disadvantaged by an action of the agency
contemporaneously with or subsequent to such participation; and 4)
that there is a causal connection between the protected activity and
the adverse employment action. Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass), affirmed,
545 F. 2d 222 (1st Cir. 1976); see also Mitchell v. Baldridge, 759 F. 2d
80, 86 (D.C. Cir. 1985); Burrus v. United telephone Co. of Kansas, Inc.,
683 F.2d 339, 343 (10th Cir. 1982), cert. denied, 459 U.S. 1071 (1982).
We find that appellant fails to establish a prima facie case for his
claims that management set him up for failure by re-assigning him to the
Resource Assistant position and that the supervisor failed to assign
a co-worker to cover for him during his vacation. Appellant engaged
in protected activity in 1994 and 1997 when he requested reasonable
accommodation for his physical disability. The agency was aware of that
activity, having granted appellant's reasonable accommodation requests.
However, because three years lapsed between the time of his first request
and his re-assignment, and seven months lapsed between the time of his
second request and the supervisor's failure to provide coverage during
his vacation, appellant fails to show a casual connection between the
protected activities and the agency actions which disadvantaged him.
Assuming arguendo, that appellant established a prima facie case, the
record indicates that appellant's re-assignment was part of a union
negotiated MOU, and that all employees were equally situated regarding
work left unattended while on leave.
Appellant's claim that the agency failed to provide him training
and assistance in his new position occurred in the months immediately
following his second request for reasonable accommodation. The Commission
finds a causal connection can be inferred based on the proximity in time
between the protected activity and the adverse action. Thus, appellant
states a prima facie case of reprisal for this claim.
However, appellant fails to demonstrate that the reason articulated
by the agency for its actions were a pretext for discrimination.
See Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
253-256 (1981). The Commission finds that appellant's assertion of
discrimination based on reprisal is not borne out by the record which
indicate that the agency provided training and assistance. Accordingly,
the decision of the agency was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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
August 26. 1999
________________________ _______________________
DATE Carlton Hadden, Acting Director
Office of Federal Operations
1 Title VII does not cover union activities absent any allegations of
discrimination.
2 Appellant states that on the day before he was to leave his supervisor
told him that he was responsible for arranging for back-up.
3 Appellant requested and was granted reasonable accommodation for his
hearing impairment in 1994.
4 Appellant does not allege discrimination based on physical disability
in his grievance.
5 Appellant and his supervisor worked in different locations.