01975831
08-20-1999
Jonathan R. Townsel, Appellant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Jonathan R. Townsel, )
Appellant, )
) Appeal No. 01975831
v. ) Agency No. FNP-94-035
)
Bruce Babbitt, )
Secretary, )
Department of the Interior, )
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning his Equal Employment Opportunity (EEO) 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.
Appellant alleges that he was discriminated against in reprisal for
prior EEO activity when he was discharged. The appeal is accepted in
accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is AFFIRMED.
The record reveals that appellant was hired by the agency on May 3,
1992, as a GS-5 Physical Science Technician. The position was a seasonal
appointment, not to exceed one year. On March 3, 1993, he was notified
that he would be terminated due to lack of funds. Believing the notice
of termination was an act of discrimination based on his race, appellant
sought EEO counseling which resulted in an Informal Resolution Agreement
(IRA) which appellant accepted on April 30, 1993. This IRA canceled
his termination and provided that he would be placed on intermittent,
non-pay status with reinstatement to paid status being dependent on
funding. Subsequently, on May 18, 1993, in the form of a �clarifying� IRA
which allegedly confirmed in writing what appellant had discussed with
the Assistant Superintendent, the agency offered appellant a Physical
Science Technician position. Appellant never formally agreed to the
terms of this �clarifying� IRA, nor did he sign the document. However,
he negotiated his starting date with the staff at Resources Management.
Appellant did not report for duty on June 14, 1993, and on that date,
he was terminated. Believing that the termination was in reprisal
for his prior EEO activity, appellant filed the instant complaint.<1>
The agency accepted the complaint for investigation, and when appellant
failed to request a hearing before an EEOC Administrative Judge, the
agency, pursuant to 29 C.F.R. � 1614.110, issued a final decision finding
no discrimination.
The FAD found that appellant established a prima facie case of
retaliation when he demonstrated that in temporal proximity to his
termination, he participated in EEO activity which management actively
attempted to resolve informally. The FAD concluded that appellant failed
to establish that the agency's legitimate, nondiscriminatory reason for
terminating him, namely that he did not report for duty, was a pretext
for retaliation.
It is from this decision appellant now appeals. On appeal, appellant
states that he never accepted the terms of the �clarifying� IRA.<2>
The agency requests that we affirm its FAD.
Based on the standards set forth in McDonnell Douglas v. Green, 411
U.S. 792 (1973) and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to retaliation cases),
the Commission agrees that appellant established a prima facie case
of retaliation. In April 1993, the agency exerted effort to resolve
appellant's EEO allegation of racial discrimination. In June 1993,
appellant rebuffed the effort, even though the effort had resulted in
his being retained and offered a paid position. Accordingly, we find
that the agency's immediate decision to terminate appellant raises an
inference of retaliation.
The Commission also agrees that appellant failed to present evidence that
more likely than not, the agency's articulated reason for terminating
appellant was a pretext for retaliation. In reaching this conclusion,
we note that appellant has presented no evidence to support a finding
that his acceptance or rejection of the �clarifying� IRA affected the
agency's actions. The agency agreed to cancel his termination and
return him to non-pay status. Subsequently, when funding came through,
the agency offered appellant a paid position of the same series and grade
he previously held. Although appellant asserts that he never accepted
the offer, he negotiated his starting date and then failed to report
for duty. Appellant offers no evidence to support a finding that his
failure to report for duty was not the real reason for his termination.
Therefore, after a careful review of the record, including appellant'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 (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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 the 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 the 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 the 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 20, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1 Appellant also filed a formal
complaint on June 24, 1993, alleging retaliation and harassment.
The agency dismissed that complaint in its entirety on September
30, 1993, and the Commission has no record of an appeal.
2 We note that neither party refers to either the IRA or the �clarifying�
IRA as a settlement agreement. Even assuming that the documents were
construed as such, appellant does not allege breach of the IRA he signed
on April 30, 1993.