01986616
06-07-2000
Richard A. Daly, Complainant, v. F. Whitten Peters, Secretary, Department of the Air Force, Agency.
Richard A. Daly v. Department of the Air Force
01986616
June 7, 2000
Richard A. Daly, )
Complainant, )
) Appeal No. 01986616
v. ) Agency No. SAC98AF0138E
)
F. Whitten Peters, )
Secretary, )
Department of the Air Force, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of race (Caucasian) and sex (male) in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1>
For the reasons stated herein, the agency's FAD is affirmed.
ISSUE PRESENTED
The issue on appeal is whether complainant has established that the
agency harassed and discriminated against him based on the above factors.
BACKGROUND
During the period in question, complainant was employed as a machinist,
WG-10, at a California facility of the agency. Believing he was a victim
of discrimination, complainant sought EEO counseling and, subsequently,
filed a complaint alleging that the agency discriminated against him
based on race (Caucasian) and sex (male) when his second level supervisor
(C-2) called his first level supervisor to inform him that complainant
returned late from lunch, but C-2 did not call the supervisors of two
individuals who returned late from lunch at the same time as he did.
Complainant stated that the agency's action was discriminatory because C-2
did not notify the supervisor of a Caucasian male and a Caucasian female
who returned late from lunch at the same time as he. Complainant further
indicated that C-2 laughed smirkingly at him specifically when he returned
late from lunch. He added that C-2 looked down on Caucasian males.
C-2 stated that he did not recall the incident at issue in this complaint.
However, he further indicated, that it was standard procedure for him
to contact the first level supervisor of an employee who returned late
from lunch or left early. C-2 added that there was no notation in
complainant's file regarding the incident.
At the conclusion of the complaint's investigation, the agency notified
complainant of his right to a hearing before an EEOC administrative judge
or an immediate FAD without a hearing. Complainant requested an immediate
FAD, which the agency issued finding no harassment. This appeal followed.
ANALYSIS AND FINDINGS
The Commission has repeatedly found that unless the conduct is very
severe, a group of isolated incidents will not be regarded as creating
a hostile work environment. See Phillips v. Dep't of Veterans Affairs,
EEOC Request No. 05960030 (July 12, 1996). A supervisor's remarks on
several occasions unaccompanied by any concrete action are usually not
sufficient to state a claim of harassment. Backo v. United States
Postal Service, EEOC Request No. 05960227 (June 10, 1996). In the
instant case, the complaint challenged an isolated incident which was
not severe enough to state a claim of harassment. See, e.g., Zhang
v. United States Postal Service, EEOC Request No. 05970085 (July 17, 1998)
(supervisor yelling at complainant on one occasion is insufficient to
demonstrate that complainant's work environment was altered so as to
state a claim of harassment). Accordingly, the complainant failed to
establish discriminatory harassment by the agency.
Complainant also alleged disparate treatment based on race and sex.
When a complainant relies on circumstantial evidence to prove an
agency's discriminatory intent or motive, there is a three step,
burden-shifting process. McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). The initial burden is on the complainant to establish a prima
facie case of discrimination. Id. at 802. The burden then shifts to
the agency to articulate some legitimate, nondiscriminatory reason for
its challenged action. Id. If the agency is successful, the complainant
must then prove, by a preponderance of the evidence, that the legitimate,
nondiscriminatory reason articulated by the agency is merely pretext
for its discrimination. Id. at 804.
Because the agency articulated a legitimate, nondiscriminatory reason for
its action, we may proceed directly to determining whether complainant
satisfied his burden for showing pretext. Haas v. Department of Commerce,
EEOC Request No. 05970837 (July 7, 1999)(citing U.S. Postal Service
Board v. Aikens, 460 U.S. 711, 713-14 (1983)). Complainant may do this
in one of two ways, either directly, by showing that a discriminatory
reason more likely motivated the agency, or indirectly, by showing that
the agency's proffered explanation is unworthy of credence. Texas Dep't
of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). Essentially,
the fact finder must be persuaded by the complainant that the agency's
articulated reason was false and that its real reason was discrimination.
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515 (1993).
C-2 stated that it was standard procedure for him to notify a first level
supervisor of an employee's late return from lunch or early departure
from work; however, he did not recall the incident at issue here and
it was not noted in complainant's file. Complainant indicated that the
agency's articulated reasons were false because C-2 did not notify the
first level supervisor of two coworkers who returned late from lunch at
the same time as complainant. The two coworkers are Caucasian and one
is a male. Accordingly, the Commission finds that complainant failed
to present evidence that more likely than not, the agency's articulated
reasons for its actions were a pretext for discrimination.
CONCLUSION
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, the Commission AFFIRMS the
agency's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
June 7, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.