01991633
09-14-2001
Norman R. Harris, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Norman R. Harris v. Department of Agriculture
01991633
September 14, 2001
.
Norman R. Harris,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01991633
Agency No. 970136
DECISION
Norman R. Harris (complainant) timely initiated an appeal from a final
agency decision (FAD) concerning his complaint 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. Complainant alleged that
he was discriminated against on the basis of sex (male) when he was
suspended for a period of 14 calendar days beginning October 7, 1996,
and ending October 20, 1996.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a GS-12 Financial Officer at the agency's Albuquerque,
New Mexico facility. Believing he was a victim of discrimination,
complainant sought EEO counseling and subsequently filed a formal
complaint on January 17, 1997. 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
a prima facie case of discrimination based on sex. Specifically, the
agency found that as a result of allegations of sexual harassment from
a GS-6 subordinate employee, an internal investigation was conducted.
Following the investigation, complainant was given a letter of proposed
suspension on June 28, 1996. The agency informed complainant that it
intended to suspend him for a 14 calendar days for conduct unbecoming
a supervisor. Complainant was given the opportunity to respond to the
letter, and on July 29, 1996, complainant submitted his written response
to the proposed suspension.
The agency noted that the investigation disclosed that complainant and a
Voucher Examiner were flirting with each other and it made other coworkers
uncomfortable. In addition, the investigation disclosed that in December
1995, complainant had purchased lingerie, a black negligee and red and
black underwear, for the Voucher Examiner. The complainant's wife had
also accepted a stationary bicycle from the Voucher Examiner in October
1995. There was another incident where complainant had gone to the Voucher
Examiner's home to help her load her household goods to transport to her
new home, and complainant had made some obscene comments and gestures
to her sons while he assisted in the move. The investigation further
revealed that complainant had brought the Voucher Examiner an airplane
ticket to San Diego and that they shared the same room for the night.
The agency concluded that management articulated legitimate,
nondiscriminatory reasons for suspending complainant for 14 days.
Specifically, the agency alleged that complainant did accept something of
significant value from an employee receiving less pay than complainant.
The agency asserts that complainant, as a supervisor, knew or should
have known that accepting a gift from a subordinate for any reason
under the circumstances present in this case was clearly inappropriate.
In addition, the agency concluded that a reasonable employee in a
supervisory position would not give his subordinate a personal gift of
a negligee in exchange for a stationary bike. The agency found that
complainant's gift of a negligee, bra and underwear and the purchase of
an airline ticket to San Diego and sharing a hotel room with a subordinate
is inappropriate and is conduct unbecoming a supervisor.
Complainant makes no new contentions on appeal.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For the complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited consideration was a factor in the adverse employment
action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then 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). Once the agency has met its burden, the complainant bears the
ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited
reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This 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. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
the complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. U.S. Postal Service
Bd. Of Governors v. Aikens, 460 U.S. 711, 713-714 (1983).
Assuming arguendo, that the complainant established a prima facie case of
discrimination based on his sex, the Commission finds that the agency has
articulated a legitimate, nondiscriminatory reason for its actions. The
agency suspended complainant after an internal investigation disclosed
improper conduct on complainant's part as a supervisor, such as giving
his subordinate a personal gift. The record reveals that the proposing
official for the complainant's 14-day suspension was a man.
The burden returns to the complainant to establish that the agency's
reasoning was a pretext for
discrimination. Upon review, the Commission finds that the complainant
has failed to do so. The
complainant argues that it was true that his subordinate did give a
bicycle to his wife after she suffered an injury in a skiing accident,
but this was a bicycle that she wanted to get rid and was going to donate
to a flea market. Complainant also asserts that he took his subordinate
to J.C. Penney's, and she picked out a negligee, and tried on, and also
a bra and panties set, at his suggestion since he wanted to be sure
that she received something equivalent to the worth of the bicycle.
Complainant failed to show by a preponderance of the evidence that his
suspension was motivated by a discriminatory animus toward his sex.
Complainant failed to show that female supervisor who acted in a similar
manner were not suspended, nor did he provide any evidence to establish
that his sex, rather than his improper behavior, lead to the suspension.
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
September 14, 2001
________________
Date