01A42695
07-29-2004
Jeffrey A. Bell, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Army and Air Force Exchange Service), Agency.
Jeffrey A. Bell v. Army and Air Force Exchange Service
01A42695
July 29, 2004
.
Jeffrey A. Bell,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Army and Air Force Exchange Service),
Agency.
Appeal No. 01A42695
Agency No. 03.025
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's final decision (FAD) in the above-entitled
matter. Complainant alleged that he was discriminated against in
violation of Title VII, on the basis of reprisal for prior EEO activity
when: (1) in April 2001, while attending an agency training class,
he was used as an example of an EEO complainant; (2) in July 2001,
his request to add his dependent child to his insurance was denied; (3)
in January 2002, he returned to work and discovered that his office had
been moved; (4) in February 2002, he was presented with his Performance
Incentive Evaluation (PIE), which assigned him a lower rating than he had
received the previous year; (5) after his office was moved in December
2001, a telephone was not installed in his office until May 2002; (6)
in August 2002, he found out that his name had been removed from the
work schedule throughout the previous two months; (6) in October 2002,
his request for a transfer to another position was not allowed; and (7)
effective November 6, 2002, he was forced to resign from the agency.
For the following reasons, the Commission AFFIRMS the FAD.
The record reflects that complainant began working for the agency's
Schofield Barracks Main Store, in Oahu, Hawaii (�facility�) in 1992.
From 1996 to his resignation in November of 1996, complainant worked
under several supervisors. The record indicates that in January of 2001,
complainant stepped between two (2) facility employees who were fighting.
One of the employees was separated from employment, and the other (E1),
a subordinate of complainant's, was reprimanded. Complainant believed
that E1 should have been terminated for her role in the fight, and he
contacted an EEO Counselor in March or April of 2001. Complainant stated
that the reason he went for counseling involved the harm E1 inflicted on
him during the altercation, which was not detailed in the reprimand of E1.
Complainant later had another altercation with E1 on November 23, 2001,
during which complainant perceived that E1 made a threat against him.
Complainant went on sick leave after the November 2001 incident, returned
in January of 2002 until May of 2002, when he went out on sick leave
until his resignation in November of 2002.
Believing he was the victim of retaliation for contacting the EEO
Counselor in March or April of 2001, complainant sought additional EEO
counseling in October of 2002 and filed a formal complaint on November
27, 2002. Complainant requested a FAD. The agency's FAD initially
found that six (6) of the eight (8) allegations made in complainant's
formal complaint were untimely, as the incidents occurred between April
of 2001 and May of 2002, more than 45 days prior to his contacting the
EEO counselor in October of 2002. Complainant alleges that he did not
contact the EEO counselor in a timely manner on these allegations as he
did believe he had been retaliated against and �did not want to make
waves.� However, as found by the agency, complainant was himself an
EEO counselor in 1988-1990 and attended counselor training as recently
as 2000. As such, the FAD found that the allegations of the incidents
which occurred between April of 2001 and May of 2002 were untimely.
Nevertheless, the FAD considered the merits of complainant's allegations
and found that he failed to establish that any of the agency's actions
were undertaken as retaliation for his contacting an EEO counselor
in March or April of 2001. As such, the FAD found that complainant's
allegations of discrimination were without merit. Complainant has made
no allegations on appeal, nor has the agency responded to complainant's
appeal.
A complainant can establish a prima facie case of reprisal by presenting
such facts that, if unexplained, reasonably give rise to an inference of
retaliation. Shapiro v. Social Security Admin., EEOC Request No. 05960403
(Dec. 6, 1996) (citing McDonell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973)). Specifically, in a reprisal claim, and in accordance with the
burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation
for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976) and Coffman v. Dept. of Veterans Affairs,
EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish
a prima facie case of reprisal by showing that: (1) he engaged in a
protected activity; (2) the agency was aware of his protected activity;
(3) subsequently, he was subjected to adverse treatment by the agency;
and (4) a nexus exists between the protected activity and the adverse
action. Whitmire v. Dept. of the Air Force, EEOC Appeal No. 01A00340
(Sept. 25, 2000); Fabish v. United States Postal Service, EEOC Appeal
No. 01981273 (June 1, 2001).
The Commission will assume, arguendo, that complainant's allegations of
discrimination were filed in a timely manner. In considering the merits
of complainant's allegations, we find that he failed to establish a prima
facie of retaliation. In so finding, we find that while complainant
engaged in protected activity by contacting the EEO counselor in March
or April of 2001 and he was subjected to adverse activity on several
occasions, there is no evidence in the record that the agency was aware of
his prior protected activity in conjunction with the actions taken by the
agency. Regarding complainant's allegation (1), although an agency EEO
Instructor (hereinafter "the Instructor") used him and the agency's Human
Resources Manager to play the respective roles of an EEO complainant and
manager at an EEO workshop one week after he contacted the EEO counselor,
we note the Instructor's comments that she "was unaware of [complainant's]
EEO activities at that point" and that "it would be rare for me to know
who was in the counseling process." Investigative Report (IR) at Tab M.
Regarding complainant's allegation (2), the record demonstrates that
his child was initially denied insurance coverage because complainant
"offered no documents to validate" the child's adoption process, as the
agency, according to an internal e-mail, had asked him to do. Further,
we note the assertion of facility's Human Resources Manager (HRM) that
Complainant ultimately presented such documentation, which the agency
accepted, acknowledging and apologizing for its error in not including the
child on the plan earlier. We note that there is no evidence that the
HRM was aware of complainant's seeking EEO counseling in March or April
of 2001 when his request to add his child to his insurance was denied in
July of 2001. IR at Tab I. Regarding complainant's allegations (3)-(6),
we find that there is no evidence in the record that the Store Manager,
complainant's supervisor (S1) or any facility employee responsible for
telephone installation was aware of complainant's prior contact with
the EEO counselor at the time of the incidents which were alleged by
complainant. IR at Tabs H, G, R.
Regarding complainant's allegation that he found out in August of 2002
that he had been taken off the schedule since June of 2002, we concur
with the FAD's finding that his being taken off the schedule was not
an adverse action. In so finding, we note that complainant was on
extended sick leave from May of 2002 through the end of October 2002.
The record indicates that complainant was not aware that he was no
longer on the facility's schedule until he received a phone call to
discuss his schedule upon his return to work. Further, we find that
despite complainant's allegations, he was not treated differently than
was a comparison facility employee (E2), as E2 was not on extended
sick leave during the period at issue and she was on sick leave for a
total of less than two (2) weeks, as opposed to complainant being on
extended sick leave for almost six (6) months. IR at Tab N. Further,
regarding complainant's allegation that he was retaliated against when his
request for a transfer to another position was denied is without merit,
as complainant conceded that he never requested a transfer. IR at Tab D.
Addressing complainant's allegation that the acts of retaliation were
sufficient to force him to resign from the agency in November of 2002,
we find that complainant has failed to demonstrate that any facility
official was aware of his contact with the EEO counselor in March or April
of 2001 when the actions alleged by complainant occurred. As we find
that complainant failed to establish a prima facie case of retaliation
on any of his allegations, we cannot find that complainant was forced
to resign from the agency as the result of retaliation for his prior
EEO activity. In so finding, we note the testimony of the facility's
Sales and Merchandise Manager stating that complainant was not treated
differently in order to make him resign or because he participated in
prior EEO activities.
Therefore, after a careful review of the record, and arguments and
evidence not specifically addressed in this decision, we affirm the FAD.
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
July 29, 2004
__________________
Date