01974354
12-07-1999
Robert Ochiogrosso, Complainant, v. William S. Cohen, Secretary, Department of Defense Agency.
Robert Ochiogrosso v. Department of Defense
01974354
December 7, 1999
Robert Ochiogrosso, )
Complainant, )
) Appeal No. 01974354
v. ) Agency No. 96-128
)
William S. Cohen, )
Secretary, )
Department of Defense )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency decision
concerning his complaint of unlawful employment discrimination on the
basis of reprisal (prior EEO activity) in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq. The appeal
is accepted in accordance with EEOC Order No. 960.001.<1> For the
following reasons, the Commission AFFIRMS the final agency decision.
ISSUE PRESENTED
The issue presented herein is whether complainant has established that
he was discriminated against on the above-referenced basis when, (1) on
November 22, 1995, he was suspended without pay for seven calendar days;
(2) on April 18, 1996, he was spoken to loudly by a management official;
and (3) on June 15, 1996, his work hours were reduced from forty hours
per week to thirty five hours per week.
BACKGROUND
Complainant, a regular part time Computer Operator with the Army and
Air Force Exchange Service (AAFES), filed a formal complaint on June 27,
1996, in which he raised what has been identified as the issue presented.
The agency accepted the complaint for processing and, at the conclusion
of its investigation, issued a final decision finding no discrimination.
This appeal followed.
The evidence contained within the investigative file reveals that on
October 27, 1995, complainant, then employed as a full time Customer
Service Leader, entered his work facility during his off duty hours.
Complainant was accompanied by a friend (non-employee). The two
were let into the building by complainant's former supervisor (FS).
According to complainant, his purpose for visiting the facility during
his off duty hours was to provide FS with a statement regarding his (FS)
EEO complaint.
On November 8, 1995, about two weeks after the after hour visit, the
agency presented complainant with a proposed notice of suspension.
The proposal gave complainant seven days within which to issue a reply.
The reply had to be postmarked within the seven day time frame.
Information in the file indicates that the reply was postmarked on
November 14. On November 13, two days before the time limit for reply
expired, the agency presented complainant with a suspension letter.
Originally, the suspension was to last for a period of fourteen
calendar days, effective November 15, 1995. Later, it was shortened
to seven calendar days, effective November 22, 1995. According to the
suspension letter, and agency officials, complainant's suspension was
triggered by his October 27, 1995 after hours visit, a violation of the
agency's security rules. In affidavits provided by the agency, several
management officials stated that, pursuant to agency policy, off duty and
non-AAFES employees are not allowed to enter the premises. Complainant
believes that his suspension was triggered by his participation in FS's
EEO complaint. Management officials, however, stated that they had no
knowledge that complainant was engaging in a protected EEO activity when
he entered the premises.
On April 17, 1996, complainant, while on break, engaged in a fifty minute
conversation with FS. The next day, he (complainant) was called into the
office of the Assistant Retail Manager (ARM). According to complainant,
and another agency employee, the ARM loudly and sarcastically asked,"How
much of yesterday's lunch did you take for today while you were standing
outside talking to your friend (i.e., FS)?"<2> Complainant believes
that this constitutes harassment and the only reason he was yelled at is
because he was talking to FS, who had previously filed an EEO complaint.
The ARM contended that his intent was not to harass complainant, but
rather to point out that he (complainant) had exceeded his break limit
during the conversation and that management was aware of it.
Approximately one month later, on May 17, 1996, complainant contacted
an EEO counselor. About a month after he initiated contact with the
EEO counselor, his weekly work hours were reduced from forty to thirty.
According to management and documents submitted by the agency, complainant
was hired as a regular part time Computer Operator. Management stated,
and complainant confirmed, that he was told that the position's tour of
duty was up to thirty hours per week When he accepted the position
it was explained to him that because of all the training and work
involved (the agency had just installed a computer system), he would
be working the maximum of forty hours per week. He was told that this
would continue until everyone was trained and until management felt
comfortable with the new computer system. According to management,
time and attendance records submitted by the agency, and complainant,
other employees' hours were reduced at the same time as complainant's.
Complainant believes that, due to the amount of work available at the
time, his hours should not have been reduced.
ANALYSIS AND FINDINGS
In order to establish a prima facie case of discrimination for an
allegation of reprisal, appellant must show the existence of four
elements: (1) that he engaged in protected activity, e.g., participated
in a Title VII proceeding; (2) that the alleged discriminating official
was aware of the protected activity; (3) that he was disadvantaged
by an action of the agency contemporaneously with or subsequent to
such participation; and (4) that there is a causal connection between
the protected activity and the adverse employment action. Hochstadt
v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318,
324 (D. Mass), aff'd, 545 F.2d 222 (1st Cir. 1976); see also Mitchell
v. Baldridge, 759 F.2d 80, 86 (D.C. Cir. 1985); Burris v. United Telephone
Co. of Kansas, Inc., 683 F.2d 339, 343 (10th Cir. 1982), cert. denied,
459 U.S. 1071 (1982).
In the present case, we find that complainant, regarding all three claims,
has established that he engaged in protected activity. Concerning the
first claim (i.e., the seven day suspension), complainant admitted that
he never informed management officials of his involvement in FS's EEO
complaint. He believed, however that they were informed by security.
According to him, when he visited the facility during off hours on
October 27, 1995, he read his statement, which was prepared in support
of his supervisor's EEO complaint, aloud and security "could have heard
. . . and . . . could have told [management] about it." It is clear from
complainant's affidavit that he has no conclusive evidence with which to
support his claim that the alleged discriminating officials were aware
of the protected activity. As such, we find that complainant failed
to establish the existence of the second element. Because all four
elements must be established before complainant can prove a prima facie
case of reprisal, we decline to consider whether he has established the
existence of the third and fourth elements.
Concerning the second (i.e., being yelled at by the ARM ) and third
(i.e., reduced hours) claims, complainant has failed to establish
that there was a causal connection between the protected activity and
the adverse employment action. As for the second issue, he indicated
that the ARM began making comments about his (complainant's) breaks
with his supervisor well before he (complainant) participated in FS's
EEO complaint. This indicates clearly to the Commission that there was
no connection between the protected activity and the agency's action.
Similarly, concerning the third issue, the evidence in the file shows
that complainant was hired as a part time employee, that he was told
that his hours would eventually be reduced, and that other employees had
their hours reduced at the same time as complainant. We find this to be
clear evidence that the required nexus between the protected activity
and the adverse action is not present. Again, because complainant has
failed to establish the existence of the fourth element, we decline
to consider whether he has established the existence of the second and
third elements.
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 final agency
decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
Dec. 7, 1999
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:
_________________________ __________________________
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.
2 According to agency documents, FS was terminated for cause in November
1995, and therefore not present at the facility from November 1995 to
the date of the incident at issue here.