01991280
12-07-2001
John H. Moudy, Complainant, v. Joseph Allbaugh, Director, Federal Emergency Management Agency, Agency.
John H. Moudy v. Federal Emergency Management Agency
01991280
December 7, 2001
.
John H. Moudy,
Complainant,
v.
Joseph Allbaugh,
Director,
Federal Emergency Management Agency,
Agency.
Appeal No. 01991280
Agency No. 95-027
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his 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., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant
alleged that he was discriminated against on the bases of sex (male)
age (54) and reprisal (prior EEO activity) when:
(1) Sixteen Special Disaster Assistance Temporary Employee (SDATE)
positions were not posted but were given to predetermined individuals,
denying complainant and others the opportunity to apply;
The Deputy HSC (S1) made numerous comments about not being able to work
with men over age 50 and that she had an offensive and hostile attitude
toward complainant;
On November 21, 1994, S1 encouraged several employees to critique
complainant's work and after an audit was performed which revealed no
errors, he was still singled out for his performance;
On December 20, 1994, S1 directed complainant to take a day off without
pay because of the performance of the staff and he was not given an
opportunity to explain himself;
During a meeting on January 5, 1995, S1 threatened to retaliate against
complainant by preventing the pay raise he had requested on November 2,
1994; by giving him an unfavorable performance rating; and by giving him
an early release from duty. He was retaliated against by not being given
a performance appraisal and he, therefore, did not receive his pay raise;
On January 10, 1995, complainant was requested to move the Combined
Verification (CV) department in with the Housing department for the
purpose of cross-training, which was never initiated. Two of the
individuals in Housing had been involved in harassing him by critiquing
his work;
On January 18, 1995, complainant was deployed to California by S1 in
order to get him out of the Region. A female from another region was
brought in to do work which remained in the Combined Verification
department. S1 did not use the Disaster Assistance Employee (DAE)
cadre list in deciding who was employed and/or deployed;
He was told that the California assignment would be from 2 to 10 days,
while management knew that it would be at least 6 weeks;
He experienced differential treatment on several occasions when he
requested, but was not allowed, to go home for medical treatment, or when
his wife was ill, while other employees were allowed periods of time off;
At the end of his 30-day assignment in St. Louis he was denied a weekend
rotation and was told there would be no rotation since he was working in
the same state where he lived. Complainant was told he could not use his
vehicle for personal use, while others were allowed to make trips home;
He was retaliated against by not being allowed to serve in a lead or
supervisory position, whereas he had always served in such positions
until he requesting counseling. Management found that only another
individual was qualified to be the lead Inspector while complainant
was demoted to inspector even though his background in construction
and supervision exceeded the qualifications of all the reservists in
the cadre for Region VII;
He was threatened in a June 23, 1995 staff meeting. Management created
a hostile environment and threatened him when he expressed his
dissatisfaction with the work environment;
He resigned on August 24, 1995, due to retaliation and concerns for
his safety;
He was retaliated against when the agency would not give him a favorable
recommendation when it was contacted by a potential employer, and
gave only vague answers indicating that he could not get along with
management;
While on duty in California, he was required to conduct an inspection on
a motor home of an individual who had threatened the agency employees.
Complainant was accompanied by two armed and bullet-proof vested guards,
but he had no protection.
The record reveals that during the relevant time, complainant was employed
as a DAE, Quality Control Inspector at the agency's Region VII, Kansas
City, Missouri facility. Believing he was a victim of discrimination,
complainant sought EEO counseling and subsequently filed formal complaints
on June 9, 1995 and May 20, 1996. 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 52-page FAD, the agency concluded that complainant failed to
establish, by a preponderance of the evidence, that the detailed agency
explanations for its employment decisions were pretextual or based on
discriminatory motives.
ANALYSIS AND FINDINGS
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)
(requiring a showing that age was a determinative factor, in the sense
that "but for" age, complainant would not have been subject to the adverse
action at issue); and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st
Cir. 1976) (applying McDonnell Douglas to reprisal cases), the Commission
agrees with the agency that complainant failed to establish sex or age
discrimination, or reprisal, because the record fails to establish,
by a preponderance of the evidence that the agency's alleged actions
actually occurred or were motivated by discriminatory animus or reprisal.
With respect to complainant's harassment claims, we find that the
preponderance of the evidence does not establish that complainant was
subjected to harassment which affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with the
work environment and/or creating an intimidating, hostile, or offensive
work environment, or that the alleged harassment was in the form of
unwelcome verbal or physical conduct involving his protected classes.
Humphrey v. United States Postal Service, EEOC Appeal No. 01965238
(October 16, 1998); 29 C.F.R. 1604.11; Hall-Broden v. Department of
Veteran Affairs, EEOC Appeal No. 01994148 (October 30, 2001).
Without repeating the detailed factual analysis provided in the FAD,
we find the record generally unsupportive of age or sex discrimination
or retaliation. The highlights are as follows:
Issue No. 1 (Sex Discrimination):
Sixteen SDATE positions were not posted but were given to predetermined
individuals, denying complainant and others the opportunity to apply.
The record shows that the regulations do not require that SDATE positions
be posted. S1 and the Human Services Branch Chief (HR) (female, dob:
10/13/37) testified that they did not have 16 SDATE positions in their
area of supervision but rather 8 or 9. HR testified that the early SDATE
positions were not advertised because the program was new and management
had little guidance about it.
On appeal, complainant generally reargues his original allegations.
In addition, complainant disagrees with management's explanation for
not advertising, since �it was the agency's policy to provide Equal
Employment Opportunity to all.� Moreover, complainant argues, inter
alia, that Region VII worked very closely with Region IV throughout
the Hurricane Andrew disaster and had access to the memorandum dated
July 8, 1993 which states that the SDATE program is an equal opportunity
program and available to all. Lastly, complainant argues that according
to an in-house newsletter, employee interest at that time had already
been shown in the SDATE program and that management was developing the
program outlines and would inform all when and where to apply for the
SDATE positions; however that did not happen.
We find that complainant's arguments on appeal do not establish pretext
or discriminatory motives. Accordingly, we agree with the agency that
complainant failed to prove, by a preponderance of the evidence that
discrimination occurred with respect to Issue No. 1.
Issue No. 2 (Harassment based on Sex/Age):
S1 made numerous comments about not being able to work with men over
age 50 and she had an offensive and hostile attitude toward complainant.
The record shows that S1 denied that she stated that she could not
work with men over 50 or held a hostile attitude toward complainant.
HR testified that contrary to complainant's allegations, S1 never
admitted to making such statements in a meeting with HR and complainant.
Several co-workers and staff found no evidence that S1 had problems with
men over age 50.
Complainant noted an EEO telephone interview notes with the Combined
Verification (CV) Inspector (CVI) (male, dob: 10/25/46) where CV1 told
the EEO counselor that according to second-hand information S1 did not
respect complainant. According to CV1, S1 stated at times that she did
not like working with men. In addition, CV1 stated that S1 did appear
to show favoritism toward females and that presented some problems
with Individual Assistance. Yet, this did not affect him and was not
an issue. However, we note that in his sworn affidavit, CV1 stated that
he never personally heard S1 comment about not liking to work with men
over 50 and that he doesn't think she had a problem with them. Still,
complainant alleges that CV1's affidavit should not be found credible
since the statement came after S1 did an evaluation for CV1 that resulted
in a pay raise.
Complainant notes that S1 admits to making age related comments
in her affidavit. According to S1, she did not make any comments
to complainant about not being able to work with men over age 50.
She further denies that she said anything about old men with whom she
used to work with as alleged. However, S1 stated that she did make a
joke one day about the Acting Human Services Chief (AHR) (male, dob:
2/10/47) for whom she used to work with in the Regional Field Office
(RFO). According to S1, she said something about �old guys in TA
and referred to AHR.� According to S1, �that was a joke and was the
only comment that [she] could remember making in that vein.� Further,
S1 noted that she apologized to complainant for anything he may have
misinterpreted but was offended by, but denied making remarks which may
have contributed to a hostile work environment.
Given the evidence of record including complainant's evidence in
rebuttal, even if we find that S1 does not like working with men
over 50, the record indicates, at best, one age related comment not
directed toward complainant. We find such comment insufficient in
showing that complainant, was subjected to harassment which affected
a term or condition of his employment and/or had the purpose or effect
of unreasonably interfering with his work environment and/or creating
an intimidating, hostile, or offensive work environment. Accordingly,
we agree with the FAD and find insufficient evidence of harassment.
Issue No. 3 (Harassment based on Age/Sex):
On November 21, 1994, S1 encouraged several employees to critique
complainant's work and after an audit was performed which revealed no
errors, he was still singled out for his performance.
The record shows that S1 denies encouraging employees to critique
complainant's work. The individuals (Housing Division Staff) who
complainant claims critiqued his work all testified that they were
never encouraged by S1 to critique his work, nor did they ever critique
his work.
Complainant argues, inter alia, that contrary to one Housing Division
employee's (HD1) (female, dob: 4/14/62) affidavit, she did in fact
interact with complainant on several occasions with the CV Department.
In addition, contrary to her affidavit, she did have involvement in making
temporary housing reviews and also EMR repair reviews. Complainant also
argues that she did write the final report for the housing officer on
the Hilderbrand File Report. In support of complainant's argument, he
notes that HD1 signed the beginning of the report and the conclusion of
the report.
In addition, complainant notes that while in a Housing Division employee's
(HD2) (female, dob: 7/20/54) affidavit she testifies that she was never
asked to critique complainant's work, according to the Hilderbrand File
Report, HD1 returned files to HD2 for further review and recommendations.
According to complainant, these discrepancies in two employees' affidavits
should be enough to lead a reasonable person to conclude that HD2 did
remember the Hilderbrand File and the Review Committee but chose to lie
in her affidavit.
After a full review of both HD1 and HD2's affidavits, we find no
discrepancies with their statements and the evidence of record. We find
that complainant presents their testimony incorrectly. We find that the
comments of HD1 and HD2 show that they had no specific involvement with
complainant and their involvement in the Hilderbrand report as well as
all other files were completely in line with the standard procedure.
We find credible HD1 and HD2's statements that they were not asked to
critique complainant's work, nor did they single out complainant for
any criticism. Accordingly, we find complainant's arguments with respect
to this issue unpersuasive.
Accordingly, we find insufficient evidence that complainant was subjected
to harassment which affected a term or condition of his employment
and/or had the purpose or effect of unreasonably interfering with his
work environment and/or creating an intimidating, hostile, or offensive
work environment, or that the alleged harassment was in the form of
unwelcome verbal or physical conduct involving his age or sex.
Issue No. 4 (Harassment based on Age/Sex):
On December 20, 1994, S1 directed complainant to take a day off without
pay because of the performance of CV1's staff and complainant was not
given an opportunity to explain himself.
The record shows that S1 testified to asking complainant to take some time
off around the holidays so that he could come back refreshed. According
to S1, she asked this of all her division chiefs around the holidays.
S1 stated that her request had nothing to do with complainant's work.
CV1 testified that he was told by S1 to take two days off without
pay after he had a confrontation with another employee of the Housing
Division. According to CV1, complainant had already scheduled a day
off and therefore did not take an additional day when told to do so by S1.
HD2 reported to S1 and testified that S1 did not ask her to take time
off around the 1994 holiday season. However, at that point, HD2 had
already been scheduled for a release of duty date. The Emergency
Management Specialist (EMS) (male, dob: 4/21/60) for Region VII
stated that he remembered S1 sending CV1 home to �cool him off� but
did not realize that complainant was also sent home. EMS attempted to
prevent sending anyone home by requesting that S1 obtain HR's approval.
The Human Services Liaison (HSL) (male, dob: 2/21/48) stated that CV1
complained that he and complainant had each been asked to take time off
because S1 felt they were stressed out and making incorrect decisions.
Once HR was advised of the situation, she did not feel it was appropriate
to follow through with sending complainant and CV1 home.
Complainant argues that he was singled out because of his age and sex.
He claims that contrary to the agency, he was the only individual who
was required to take a day off.
Other than complainant's allegations, there is insufficient evidence
in the record to show that complainant was forced to take a day off.
The weight of the evidence indicates that complainant had voluntarily
scheduled a day off.
Accordingly, we find insufficient evidence that complainant was subjected
to harassment which affected a term or condition of his employment
and/or had the purpose or effect of unreasonably interfering with his
work environment and/or creating an intimidating, hostile, or offensive
work environment, or that the alleged harassment was in the form of
unwelcome verbal or physical conduct involving his age or sex.
Issue No. 5 (Reprisal):
During a meeting on January 5, 1995, S1 threatened to retaliate against
complainant by preventing the pay raise he had requested on November 2,
1994; by giving him an unfavorable performance rating; and by giving him
an early release from duty. He was retaliated against by not being given
a performance appraisal and he, therefore, did not receive his pay raise.
According to the record, S1 denies that she threatened retaliation
against complainant. HR (who was present at the January 5, 1995 meeting)
testified that S1 did not threaten to retaliate against complainant.
The record shows that EMS processed all the pay raises for DAE's in
the region. According to EMS, if a DAE was exceptional he or she would
sometimes get a step increase based on the DAE's evaluation. EMS further
testified that grade increases were given every two years when the DAE's
came up for renewal. Their grade increases were based upon time put in
and quality of work performed. EMS also testified that if the DAE did
not have an evaluation when it came time to consider him or her for a
pay raise, he would ask the supervisor to provide an evaluation.
The record shows that complainant received a grade increase from a C1 to
a C2 level in July, 1994. Complainant received another grade increase
from a level C2 to a C3 in July, 1995. Complainant's salary increased
from $33,712 to $37,038. Complainant's first performance evaluation after
the January 5, 1995 meeting is dated May 5, 1995, with the evaluator
being a DAE supervisor in California (E1) (male, dob: 12/10/37).
Complainant argues that he was eligible for a level pay increase as
of October 1, 1994. Complainant asserts that while he received a pay
raise in July, 1994, he was nevertheless eligible for another pay raise
in November, 1994, since he had served more than 90 days active disaster
time and was in a new two-year term. Complainant also argues that other
Region VII employees were getting their evaluations and were receiving
their pay raises including CV1.
In addition, complainant asserts that several agency witnesses gave false
testimony. However, after reviewing the record, we find that complainant
generally misstates the witnesses testimony. Moreover, the preponderance
of the evidence does not support complainant's allegation regarding the
statements made at the January 5, 1995 meeting. In addition, there is no
evidence that employees outside complainant's protected classes received
more than one grade increase in any one-year period. Even assuming
complainant was eligible to receive a grade increase in November, 1994,
the record indicates that complainant's immediate supervisor had full
discretion as to when to perform an evaluation and recommend a grade
increase. There is no indication that the failure to receive a grade
increase until July, 1995 was based upon retaliatory motives.
Accordingly, we find no basis to disturb the agency's finding that
complainant failed to prove, by a preponderance of the evidence,
retaliation with respect to Issue No. 5.
Issue No. 6 (Reprisal):
On January 10, 1995, complainant was requested to move CV in with
Housing for the purpose of cross-training, which was never initiated.
Two of the individuals in Housing had been involved in harassing him by
critiquing his work
The record shows that CV was moved in with the Housing Department because
they were downsizing space in the RFO and it was also thought that such
a move could provide them the opportunity to cross-train. While the
cross-training did go forward, complainant did not get much cross-training
opportunities since he was deployed to California shortly after the
reorganization and prior to his deployment the office was very busy.
Complainant contends that he was moved into a hostile work environment
when the reorganization took place. Complainant states that the
cross-training took over a week to be implemented. While HD2 testified
that she and complainant got a half day of cross-training, complainant
asserts that they did no such cross-training. Lastly, complainant argues
that it was a known fact that the Housing Department staff was �very
bitter and hostile� toward complainant. Complainant asserts that the
move was only suggested after he filed a complainant of discrimination.
Given these facts, complainant asserts that a reasonable person should
conclude that the only purpose of the move was to harass him.
We find that the weight of the evidence supports the agency's explanation
for its reorganization. In addition, we disagree with complainant's
interpretation of the testimony of various witnesses. Accordingly, we
agree with the agency's finding of no retaliation with respect to Issue
No. 6.
Issue No. 7 (Sex/Age Discrimination/Harassment):
On January 18, 1995, complainant was deployed to California by S1 in
order to get him out of the Region. A female from another region was
brought in to do work which remained in CV. S1 did not use the DAE
cadre list in deciding who was employed and/or deployed.
The record shows that S1 did not deploy people but recommended that
they be deployed. Accordingly, there was no reason for her to check
the cadre list, although HR or EMS may have done so. According to S1,
complainant was deployed to California in order to allow him to keep
working since the inspections work in the RFO was almost completed.
S1 also testified that an auditor (female) (A1) was brought in from Region
I to do audits of inspections, since the inspectors in Region VII could
not audit their own work. HR corroborated the fact that the agency was
getting ready to release complainant since the CV work was finished.
Since he had brought an alleged EEO problem to her attention, HR did not
want it to appear that she was retaliating against him by releasing him
and the California deployment was an opportunity to allow complainant
to continue to work. HR also corroborates S1's testimony that A1 was
brought in to conduct audits of inspections and they could not ask an
inspector to check his own work.
Complainant alleges that S1 made comments about working with men and did
not like working with complainant. In addition, complainant asserts that
in November, 1994, two men with a high level of CV experience contacted
S1 and requested the audit position. However, S1 refused to select
either of these men. Accordingly, complainant asserts that S1 brought
in A1 because she was female and because S1 did not like complainant.
Complainant also testified that a male employee wanted to go to California
but was not asked to go. In addition, complainant asserts that a female
with the skill requirements necessary was not asked to go to California.
Complainant also alleges that S1 did not need to bring in someone
from a different region to conduct audits since audits were regularly
conducted on individual inspections by staff in the same region before.
In support of his assertions, complainant cites the Hilderbrand file
which had an audit performed on complainant's inspection by a CV staff
member in Region VII.
Complainant fails to identify similarly situated individuals, outside his
protected classes, who were not released from duty at the time of his
deployment to California. Accordingly, complainant has failed to show
that the agency's reason's for offering complainant the job in California
was pretextual. In addition, we do not find the agency's reasons
to bring in an auditor from another Region pretexual simply because
one of complainant's inspections (which had initial signs of errors)
was previously audited by a different CV employee within the Region.
The record indicates that S1 needed hundreds of inspections audited and
determined that an outside auditor would be the most efficient manner
to conduct such audits. We find insufficient bases to discredit S1's
judgment in this regard. Accordingly, we agree with the FAD's conclusion
that complainant failed to prove discrimination with respect to Issue No.
7.
Issue No. 8 (Reprisal):
Complainant was told that the California assignment would be from 2 to
10 days, while management knew that it would be at least 6 weeks.
The record shows that complainant's deployment to California required
him to conduct a preliminary damage assessment (PDA) of the area.
HR testified that she had no idea how long the California deployment
was supposed to last and usually it would be hard to know how long
it could take. S1 testified that she does not remember how long the
deployment was expected to last.
According to complainant, PDA usually takes 1-3 days, accordingly it would
be reasonable to believe that HR and S1 advised complainant that he would
only be in California for 2-10 days. While he was told he was being sent
to California to perform PDA, when he got to California, complainant was
instructed that he was selected (along with the other staff) to conduct
inspections that would take about six weeks. Lastly, complainant asserts
that he could have remained in Region VII and conducted the audits.
For the reasons stated above, we find no evidence that complainant
was deployed to California because of prior EEO activity, but
rather for legitimate, non-discriminatory reasons. Aside from
complainant's assertions, there is no corroborating evidence of pretext
or discriminatory or retaliatory animus. Accordingly, we affirm the
agency's finding of no reprisal with respect to Issue No. 8.
Issue No. 9 (Reprisal):
Complainant experienced differential treatment on several occasions when
he requested, but was not allowed, to go home for medical treatment,
or when his wife was ill, while other employees were allowed periods of
time off.
According to the Inspection Services Coordinator (ISC) (male, dob:
unknown) and CV1, complainant never informed him that he needed to
go home because he was ill or his wife was ill. CV1 testified that
while complainant approached him about a rotation home, CV1 explained
that everyone had already gone home, including complainant. However,
CV1 suggested that complainant could take some time off when he renewed
his car lease in Kansas City, and that he
could go home anytime he wanted but that such would not be considered
a rotation. ISC's testimony corroborates CV1's testimony.
Complainant asserts, without corroborating evidence, that he was singled
out because of his prior EEO activity and that he in fact notified CV1 and
ISC of his, and his wife's, illness as the reason he needed to go home.
However, we find that the weight of the evidence supports the agency's
conclusion that complainant failed to notify the responsible management
officials of his or his wife's illness. We also find no evidence of
retaliatory animus on the part of the alleged responsible officials.
Accordingly, we affirm the agency's finding of no reprisal with respect
to Issue No. 9.
Issue No. 10 (Reprisal):
At the end of complainant's 30-day assignment in St. Louis he was denied
a weekend rotation and was told there would be no rotation since he was
working in the same state where he lived. Complainant was told he could
not use his vehicle for personal use, while others were allowed to make
trips home.
The record shows that ISC told complainant that he could have gone home
to Kansas City to renew his car rental and could have taken time off
while he was there. ISC denied telling complainant that he was local
and could not take a rotation.
CV1 testified that ISC told him there would be no rotations in Saint
Louis since the inspectors were all from Kansas City and Kansas City
was also a declared disaster area. However, ISC stated that any of the
inspectors could have gone home because home was so close. CV1 further
testified that he told complainant that he could have gone home any time
but that would not be considered a rotation. Another agency witness
corroborates CVI and ISC's testimony. In addition, HR testified that
nothing in the regulations speaks to rotations and they are handled on
a disaster-by-disaster basis.
In his appeal, complainant, inter alia, contends that a DAE Inspector
(D1) (male, dob: 10/11/54) testified that complainant was denied the
opportunity to go home. However, complainant misconstrues D1's testimony.
D1's exact testimony corroborates ISC's testimony. In fact, D1 also
testified that he did not believe any of the inspectors went on rotation.
Moreover, D1 noted that he did not hear complainant ever inform CV1 that
he was sick and wanted to go home. Given the fact that complainant
fails to support his contentions with corroborating evidence of any
kind, we must affirm the agency's conclusion that complainant has not
met his burden of proving reprisal. We note that complainant presents
no evidence of retaliatory animus.
Issue No. 11 (Reprisal):
Complainant was retaliated against by not being allowed to serve in a lead
or supervisory position, whereas he had always served in such positions
until he requesting counseling. Management found that only another
individual was qualified to be the lead Inspector while complainant was
demoted to Inspector even though his background in construction and
supervision exceeded the qualifications of all the reservists in the
cadre for Region VII.
The record shows that the policy of the agency was to attempt to
rotate people in supervisory positions among disasters. For example,
an Inspector might work as a supervisor in one disaster and in another
disaster work for someone the Inspector had previously supervised.
HR denied not placing complainant in a supervisory role in Saint Louis in
retaliation for prior EEO activity. The record indicates that complainant
had numerous opportunities to work in supervisory positions. Lastly,
we find insufficient evidence of retaliatory animus. Accordingly, we
must affirm the agency's conclusion that complainant failed to meet his
burden of proving reprisal with respect to Issue No. 11.<1>
Issue No. 12 (Harassment and Discrimination based on Sex, Age and
Reprisal):
Complainant was threatened in a June 23, 1995 staff meeting. Management
created a hostile environment and threatened him when he expressed his
dissatisfaction with the work environment.
The record indicates that in a June 23, 1995 staff meeting, ISC informed
the entire staff that CV1 would be acting for him in his absence.
Based upon the dissatisfied looks on his staff's faces, ISC stated
that �if I am creating a hostile work environment, I don't give a sh_t.
If anyone has a problem with that he can see me behind the barn.� ISC
testified that �see me behind the barn� is a common remark that he makes.
However, ISC testified that the statement is intended to mean someone
should see him in private and that it was not intended as a threat.
We find that assuming such a statement was intended as a threat, we,
nevertheless, conclude that complainant failed to present sufficient
evidence that he was subjected to harassment which affected a term
or condition of his employment and/or had the purpose or effect of
unreasonably interfering with his work environment and/or creating
an intimidating, hostile, or offensive work environment, or that the
alleged harassment was in the form of unwelcome verbal or physical conduct
involving his age, sex or prior EEO activity. Assuming complainant was
able to prove that such incident occurred, we find this one statement
insufficient to rise to the level of a hostile work environment.
Accordingly, we agree with the FAD and find insufficient evidence of
harassment.
Issue No. 13 (constructive discharge based on reprisal):
Complainant resigned on August 24, 1995, due to retaliation and concerns
for his safety.
Complainant argues on appeal that he resigned in August, 1995 because
the working conditions were intolerable. Complainant generally asserts
that conduct of management (as alleged in each issue herein) created
intolerable working conditions which caused his resignation.
Since we find that complainant has failed to prove, by a preponderance
of the evidence, sex or age discrimination or reprisal with respect
to any employment action described herein, and has failed to prove, by
the preponderance of the evidence, that the agency engaged in harassing
behavior against complainant, we cannot find that complainant presented
sufficient evidence to support his constructive discharge claim.
Issue No. 14 (Reprisal):
Complainant was retaliated against when the agency would not give him a
favorable recommendation when it was contacted by a potential employer,
and gave only vague answers indicating that he could not get along
with management.
Complainant asserts that the person who eventually did hire him to work
for the City of Kansas (E2), told him that HR would not give him a good
reference. According to the record, HR stated that no one from the City
of Kansas ever contacted her about a reference check on complainant.
In addition, E2 testified that he did not remember who he spoke with,
but says that the person gave him vague answers which were typical of
responses to reference checks about government employees. Moreover,
E2 stated that he could not find any negative data about complainant
and suggested hiring him on the spot.
Since we find no evidence which corroborates complainant's assertion that
the agency gave complainant a negative reference, we find that complainant
failed to provide sufficient evidence in support of discrimination or
retaliation. Accordingly, we must affirm the agency's findings with
respect to this issue.
Issue No. 15 (Reprisal):
While on duty in California, complainant was required to conduct an
inspection on a motor home of an individual who had threatened the agency
employees. Complainant was accompanied by two armed and bullet-proof
vested guards, but he had no protection.
E1, complainant's supervisor in California, testified that a federal
investigatory agency asked the agency if it would cooperate by allowing
agents to accompany complainant on an inspection. E1 further testified
that he told complainant that his cooperation was strictly voluntary and
that if he did not want to do it E1 would get someone else to conduct
the inspection.
Complainant asserts on appeal that E1 never indicated to him that the
inspection was voluntary. According to complainant, at the inspection,
the home-owner was very belligerent and disrespectful of complainant
and the other federal agents. Complainant alleges that, while at the
inspection, he learned that the home-owner had been threatening the Red
Cross, and other agency employees. Complainant also asserts that he was
treated differently in that the agents from a different federal agency
were wearing bullet-proof vests and he went to the inspection without
any protection. Complainant asserts that there was no reason to have
complainant go on such a dangerous mission other than for reasons of
retaliation.
We find no evidence of disparate treatment. We note that the agency
had no control over employees of a different agency and there is no
indication that the responsible management officials were aware of
any necessity to obtain such protection for complainant. We also find
insufficient evidence in the record to support complainant's claim that
the inspection was not voluntary or that it was motivated by reprisal.
Accordingly, we must affirm the FAD's finding of no discrimination or
reprisal with respect to this issue.
An entire review of the record indicates that complainant's assertions
are generally uncorroborated by any documentary or testimonial evidence.
In addition, the agency's articulated, legitimate bases for its employment
actions are generally corroborated by numerous witnesses and documentary
evidence. We also generally find complainant's assertions on appeal to
inaccurately described the witnesses' testimony. We also note that a DAE
Inspector (D2) (female, dob 4/5/65) testified that she had a conversation
with complainant in which complainant told her that his wife had suggested
that he arrange for the agency to fire him so that he could file an EEO
complaint in order to be provided with an income for the rest of his life.
After a careful review of the record, including complainant's contentions
on appeal, and considering D2's testimony along with the general lack of
supportive evidence, we must affirm the FAD's finding of no discrimination
and reprisal with respect to all issues alleged by complainant.
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
December 7, 2001
__________________
Date
1 We note that complainant failed to raise any contentions on appeal
with respect to this issue.