01990652
06-14-2000
James T. Gladden, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
James T. Gladden v. Department of Veterans Affairs
01990652
June 14, 2000
James T. Gladden, )
Complainant, )
) Appeal No. 01990652
v. ) Agency No. 97-1513
) Hearing No. 100-98-7493X
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
On October 26, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) pertaining to 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.<1> The
Commission accepts the appeal in accordance with 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. � 1614.405). For the following
reasons, the Commission AFFIRMS the agency's decision.
During the relevant time, complainant was a Program Clerk, in the Office
of Automation at the agency's National Cemetery System in Washington, D.C.
Complainant requested to become a part-time employee so he could attend
college. Thereafter, complainant wanted to return to full-time status but
he was not immediately reinstated. Complainant also claimed he was not
promoted to a GS-6 Program Clerk position. According to complainant,
some of his duties were reassigned so he would not qualify for the
GS-6 position. Finally, complainant alleges that he was subjected to
a hostile work environment.
On May 13, 1997, complainant filed a formal complaint, alleging
discrimination on the bases of race and sex. Following an investigation,
complainant requested a hearing before an EEOC Administrative Judge (AJ).
The AJ determined that although complainant satisfied the procedural
requirements for a hearing, the evidence in the case did not warrant
a hearing. Thereafter, on August 25, 1998, the AJ issued her Findings
and Conclusions based on the written record, finding no discrimination.
The AJ concluded that the agency articulated legitimate nondiscriminatory
reasons for its actions, which included: the position did not
warrant full-time hours, problems with complainant's productivity, and
complainant's difficulties performing GS-6 level tasks. The AJ further
determined that the agency had presented nondiscriminatory reasons for its
actions with respect to complainant's claim of a hostile work environment.
The agency indicated complainant's performance problems necessitated
counseling and close supervision. In addition, efforts were made to
resolve complainant's concerns regarding answering the phone, but that
administrative employees did not qualify for voice mail. According to
the AJ, complainant did not present any substantive evidence indicating
that the agency's articulated reasons were merely a pretext to mask
unlawful discrimination. Therefore, the AJ concluded that complainant
failed to establish, by a preponderance of the evidence, that he was
discriminated against based on race and sex.
The agency's FAD implemented the AJ's recommended findings of fact and
conclusions of law.
On appeal, complainant reiterates his claims that he was treated less
favorably than his female and white co-workers. Complainant argues
that although the record is incomplete, it is sufficient to show that
the agency's articulated reasons are pretextual. Complainant contends
that his performance appraisals do not indicate a need for additional
supervision. Regarding his productivity, complainant argues that
inappropriate standards were used to evaluate his performance, in that
he was never compared to a white or female employee working part-time
with full responsibilities. Similarly, with respect to the change in
his job duties, complainant asserts that greater demands were made on
him than his female and white co-workers.
The Commission discerns no basis to disturb the AJ's decision. We note
that complainant has failed to demonstrate that the agency's reasons
were pretext for race and sex discrimination. Complainant disputes
the agency's assertions that he had performance problems. However,
complainant does not establish that the agency's actions were motivated
by discrimination. In his affidavit, complainant himself was unable to
establish a nexus between the agency's actions and the basis of race.
Complainant testified that although he had "seen white and black come
and go and get promoted . . . I've never seen Afro American me [get
promoted]." Regarding his claim of discriminatory harassment, complainant
testified that his work load created a hostile work environment.
Complainant may have perceived that he was harassed due to the large
amount of work to be completed; answering phones for others; being
accused of socializing too much; and being watched. However, we find
that the alleged actions are not severe or pervasive enough to establish a
hostile work environment. We conclude that a reasonable person would not
find the conduct in question hostile or abusive. Moreover, complainant
has failed to demonstrate that the alleged actions were motivated by
discriminatory animus. 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 agency's final decision .
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:
June 14, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.