01A12508
12-07-2001
Jimmy M. Roberts, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Jimmy M. Roberts v. Department of the Air Force
01A12508
December 7, 2001
.
Jimmy M. Roberts,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A12508
Agency Nos. HPOF99209 and HPOF00016
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the final agency decision
(FAD), dated January 25, 2001, concerning his two complaints 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.
ISSUE PRESENTED
Whether complainant was discriminated against on the basis of reprisal
when the agency allegedly harassed him and ultimately issued him a Notice
of Removal and a Last Chance Agreement.
BACKGROUND
Complainant alleged that he was discriminated against in reprisal for
prior EEO activity when he was subjected to harassment as follows:
HPOF99209
On an ongoing basis since August 1, 1999, his first (Supervisor 1)
and second (Supervisor 2) line supervisors spied on the complainant by
eavesdropping and passing by his work area three to five times each day.
On August 18, 1999, Supervisor 1 reprimanded him for use of personal
lap top computer in front of his co-workers that resulted in a written
counseling by Supervisor 2.
On August 26, 1999, management used documented evidence of eavesdropping
supplied by Supervisor 1 to issue him a notice of proposed removal.
On September 9, 1999, Supervisor 2 disapproved the use of a personal
lap top computer that his third level supervisor, Deputy Chief (DC),
Supply Division, had approved for use.
On September 14, 1999, Supervisor 1 eavesdropped on a conversation
between him and his co-worker (JG).
HPOF00016
On September 27, 1999, management offered the complainant a Last Chance
Agreement (LSA) in lieu of removal that complainant believed was a
blatant disregard to his legal rights.
The record reveals that during the relevant time, complainant was
employed as a Supply Clerk, GS-2005-05 at the agency's Stock Control
Section, Hill Air Force Base, Utah. Believing he was a victim of
discrimination, complainant sought EEO counseling and subsequently
filed two formal complaints. HPOF99209 was filed on October 14, 1999
and HPOF00016 was filed on November 30, 1999. On May 22, 2,000, due to
workload considerations at the Sacramento, California office, the two
cases were transferred to the Office of Complaint Investigation in San
Antonio, Texas. 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.
When complainant failed to respond within the time period specified in
29 C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant did not establish by a
preponderance of the evidence that the actions taken by the agency were
motivated by unlawful discrimination.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the evidence does not support the
decision of the agency, and that the decision of the agency ignores
testimony before the Merit Systems Protection Board (MSPB) and the Utah
Workforce Services Appeals Tribunal (UWSAT). Further, the complainant
clarified that his complaint did not address the agency's decision in
proposing the LCA to him, but rather the problems caused by the terms
and conditions in the LCA. The agency requests that we affirm its FAD.
STATEMENT OF FACTS
Complaint No. HPOF99209
Complainant alleged that between August 1, 1999, and September 14,
1999, his supervisors eavesdropped and spied on him, reprimanded him in
front of a co-worker, and disapproved of the use of his personal laptop
computer although he was permitted to use it by his third line supervisor.
Also, complainant alleged that management used the evidence obtain by
eavesdropping to issue him a notice of proposed removal.
Supervisor 1 testified that she worked in close proximity to
the complainant and had to pass his cubicle numerous times a day.
Supervisor 1 did overhear conversations. Supervisor 1 acknowledged
that the investigation was initiated on what she overheard between the
complainant and a systems analyst (SA). This conversation concerned
an illegally installed modem card in the complainant's computer.
Complainant alleged and Supervisor 1 denied standing on a chair or a
stool in her cubicle to listen to his conversations.
Supervisor 2 testified she passed the complainant's cubicle but did
not walk into his area or eavesdrop on him. Supervisor 2 testified
that she was aware that the complainant had disciplinary problems,
and had filed grievances, but was unaware that he had filed any EEO
complaint. Supervisor 2 issued the Decision to Remove letter and the LCA.
The complainant never responded to the LCA offer. The LCA was presented
to the complainant after he had received the Decision to Remove for the
offenses of failure to follow instructions regarding the unauthorized
use of government equipment and making false or misleading statements to
cover-up unauthorized use of government equipment. Supervisor 2 testified
that she did not treat the complainant differently than she would have
treated other employees charged with the same actions. Supervisor 2
said that complainant's prior EEO activity was not a consideration in
any action she took.
SA, a contract employee, was a lead systems analyst who worked on
complainant's computer. SA testified that he had removed a modem
from the complainant's old computer and advised him, after seeing him
installing it in the new computer, that it was illegal to have the modem.
SA removed the modem. SA testified that on the next day he found the
modem reinstalled in the computer. SA informed higher authorities of
the problems with the modem on the complainant's computer.
DC testified that while he allowed the complainant to use his laptop for
personal use, complainant was to request and receive prior permission.
DC testified that Supervisor 1 denied the complainant use of his
laptop when he did not seek prior permission. DC had conducted the
investigation into the modem found in the complainant's computer.
The Notice of Proposed Removal stated that it was being issued for
the repeated offenses of failure to follow instructions regarding the
unauthorized use of government equipment and making false or misleading
statements to cover-up unauthorized use of government equipment.
Concerning the testimony before the Merit Systems Protection Board
(MSPB) and the Utah Workforce Services Appeals Tribunal (UWSAT), the
complainant was advised by the investigator that certified written
transcripts were required if the complainant wished the contents of a
hearing to be included in the file. The record does not contain any
certified written transcripts.
Complaint No. HPOF00016
Complainant filed this complaint against the terms and conditions
of the LCA and not the decision making process behind its issuance.
The complainant stated that the LCA gave him an ultimatum - give up his
right to appeal to MSPB and EEO or give up his employment. The LCA was
drafted by the Labor Relations Branch at the Civilian Personnel Office
and the legal office at the agency. The complainant refused the LCA
and the Removal became effective.<1>
The LCA states that its purpose is to provide the complainant with an
alternative to removal from federal employment and that management
recognizes that the complainant has performed effectively in the past.
The LCA further states that it is an attempt to mend any division in the
employer/employee relationship with an effort to redirect the relationship
in a positive and beneficial direction for both parties.
The LCA does contain language that the complainant agrees to waive all
appeal rights to the MSPB, Grievance-Arbitration, and Equal Employment
Opportunity complaint procedures concerning the Removal Action, the LCA,
the probationary period provided by the LCA and any disciplinary action
during the time period covered by the agreement. And that upon successful
completion of the LCA, the complainant would agree to dismiss any and
all complaints then pending in any forum regarding the removal action.
Supervisor 2 testified that she was comfortable with the contents of the
LCA and understood that the complainant was giving up rights concerning
the removal action. Supervisor 2 provided the complainant with the LCA
and told him that he should read it, see if it was something he would be
interested in, and advised him to get back to her. The complainant told
Supervisor 2 that he would have his attorney look it over. Supervisor 2
testified that the complainant never responded to her.
In the Final Interview report, signed by the complainant and the
counselor, it was summarized that the LCA was a conditional offer,
intended to provide the complainant with an alternative to removal.
The report states that the Judge Advocate office contended that the LCA
contained verbiage which was standard and was not intended to have the
complainant waive future EEO rights. The record does not reflect that
the complainant discussed his concerns about a waiver of future rights
with Supervisor 2, the agency, or the Judge Advocate staff, or attempted
to negotiate any terms of the offer which were unsettling to him.
ANALYSIS AND FINDINGS
Removal
Claims of reprisal discrimination are examined under the tripartite
analysis first enunciated in McDonnell Douglas Corporation V. Green,
411 U.S. 792 (1973). See Loeb v. Textron, Inc., 600 F.2d 1003 (1st
Cir. 1979); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
140 (2000). For the complainant to prevail, he must first establish a
prima facie case.
The complainant can establish a prima facie case of reprisal
discrimination by presenting facts that, if unexplained, reasonably give
rise to an inference of discrimination. Shapiro v. Social Security
Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell
Douglas, 411 U.S. at 802). In accordance with the burdens set forth in
McDonnell Douglas, and 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. Department of Veteran Affairs, EEOC Request
No. 05960473 (November 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.
Once a complainant has established a prima facie case, the burden
of production shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). The agency
must provide a clear explanation for its actions and the treatment
accorded complainant. After the agency has articulated its reason, the
complainant must demonstrate by a preponderance of the evidence that the
agency's articulated reason was a pretext for discrimination, that is,
based on prohibited or discriminatory considerations. At all times,
complainant retains the burden of persuasion, and it is his obligation
to persuade by a preponderance of the evidence the ultimate issue of
whether the agency's action was motivated by discrimination. Burdine,
450 U.S. at 248; see U.S. Postal Service Board of Governors v. Aikens,
460 U.S. 711 (1983); see also O'Connor v. Consolidated Coin Caters Corp.,
517 U.S. 308 (1996); St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993). Absent a showing that the agency's articulated reason was used
as a tool to discriminate against him, complainant cannot prevail.
The established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima facie
case, need not be followed in all cases. Since the agency found that
the complainant established a prima facie case of discrimination based
on reprisal, the factual inquiry can proceed directly to the second step
of the McDonnell Douglas analysis. The agency may rebut complainant's
prima facie case by articulating legitimate, nondiscriminatory reasons
for its action.
Supervisor 1 testified that she worked in close proximity to the
complainant and had to pass his cubicle throughout the day. She admitted
overhearing his conversations but stated that it was due to close
proximity and the physical layout of the office space. While the
investigation was initiated based on what she overheard between the
complainant and a systems analyst, the conversation did concern an
illegally installed modem card in the complainant's computer.
Supervisor 2 testified that although she passed the complainant's cubicle,
she did not walk into his area or eavesdrop on him. Supervisor 2
issued the Decision to Remove for the offenses of failure to follow
instructions regarding the unauthorized use of government equipment and
making false or misleading statements to cover-up unauthorized use of
government equipment. Supervisor 2 testified that she did not treat
the complainant differently than she would have treated other employees
charged with the same actions. Supervisor 2 said that complainant's
prior EEO activity was not a consideration in any action she took.
The agency articulated a legitimate, nondiscriminatory reason for its
actions, i.e., the agency's Decision to Remove was for the offenses
of failure to follow instructions regarding the unauthorized use of
government equipment and making false or misleading statements to cover-up
unauthorized use of government equipment. Therefore, we will proceed to
the third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-14 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990).
Complainant failed to present sufficient evidence that the agency's
reasons for its actions were in retaliation for the complainant's prior
EEO activity. We find that complainant has not established that the
agency's reason to remove the complainant was pretextual. See St. Mary's
Honor Center v. Hicks, 509 U.S. 502 (1993). Accordingly, the Commission
finds that the evidence supports the finding that the agency did not
engage in reprisal discrimination.
Harassment
Harassment violates federal law when it involves discriminatory treatment
on the basis of protected activity under the anti discrimination statutes.
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. Enforcement Guidance on Harris v. Forklift Systems, Inc.,
EEOC Notice No. 915.002 (March 8, 1994) at 3.
The conditions of employment are altered only if the harassment
culminated in a tangible employment action or was sufficiently severe
or pervasive to create a hostile work environment. This sort of claim
is analyzed like any other case in which a challenged employment action
is alleged to be discriminatory. If the employer produces evidence of
a nondiscriminatory explanation for the tangible employment action,
a determination must be made whether that explanation is a pretext
designed to hide a discriminatory motive. Enforcement Guidance: Vicarious
Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002
(June 18, 1999).
Complainant alleged that his supervisors eavesdropped and spied on him.
Also, complainant alleged that management used the eavesdropped evidence
to issue him a notice of proposed removal. The complainant was issued a
Notice of Proposed Removal on August 26, 1999, a Decision to Remove letter
on September 27, 1999, and on the same day, a LCA . The allegations of
harassment will be reviewed in the context of culminating in a tangible
employment action - the removal of the complainant from federal service.
The agency articulated a legitimate, nondiscriminatory reason for its
actions, i.e., the agency's Decision to Remove was for the offenses
of failure to follow instructions regarding the unauthorized use of
government equipment and making false or misleading statements to cover-up
unauthorized use of government equipment. The complainant will have to
prove that the asserted reason was a pretext designed to hide the true
discriminatory motive.
The LCA states that its purpose is to provide the complainant with an
alternative to removal from federal employment and that management
recognizes that the complainant has performed effectively in the past.
The LCA further states that it is an attempt to mend any division in the
employer/employee relationship with an effort to redirect the relationship
in a positive and beneficial direction for both parties. The record does
not reflect that the complainant discussed his concerns about waiver of
future rights with Supervisor 2, the agency, or the Judge Advocate staff,
or attempted to negotiate any terms of the offer which were unsettling
to him.
Assuming arguendo, that the offering of the LCA is a tangible employment
action, the LCA did not waive past rights as to EEO complaints other
than to the removal action. The LCA did not waive prospective rights
that the complainant may have had as to matters other than the LCA.
See Bell v. Department of Defense, EEOC Request No. 05940741 (January
6, 1995)(prospective waivers of Title VII rights are invalid and are
presumed to violate public policy). The LCA was in the nature of a
settlement proposal, which the complainant had the right to negotiate.
The complainant had the option of resolving his dispute in this manner
or not resolving by use of agreement. His choice not to resolve the
pending matters through the use of a LCA is not a violation of his rights
by the agency. The complainant's arguments concerning the LCA do not
established that the agency's reason to remove the complainant was
pretextual. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
CONCLUSION
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.
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 (OF) 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
December 7, 2001
__________________
Date
1The agency's brief on appeal states that the MSPB held a hearing on
December 16, 1999, and issued a decision sustaining the removal on
February 24, 2000. The complainant filed a petition for review which
was denied by the Board on March 15, 2000.