01A14592
12-23-2002
Thomas E. Collins, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Thomas E. Collins v. Department of Agriculture
01A14592
December 23, 2002
.
Thomas E. Collins,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A14592
Agency No. 99-0232
Hearing No. 130-A1-8050-X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final order
(FAD) concerning his equal employment opportunity (EEO) 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., 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. For the following reasons, the Commission AFFIRMS
the agency's final order.
BACKGROUND
The record reveals that complainant, an acting Program Team Leader, GS-12,
at the agency's Natural Resource Conservation Service (NRCS) Mississippi
State Office, in Jackson, Mississippi, filed a formal EEO complaint on
December 14, 1998, alleging that the agency had discriminated against
him on the bases of race (Black), religion (Jehovah's Witness), age
(D.O.B. January 12, 1944), and reprisal for prior EEO activity when:
(1) Complainant received a satisfactory rating for FY 98, which did
not give him credit for nine months of work as a Soil Conservationist;
Complainant did not receive performance standards for his soil
conservationist responsibilities for FY 98; and
Complainant was required to perform the duties of two positions during
FY 98.
The investigation of the complaint was not completed within 180 days and
complainant requested a hearing before an EEOC Administrative Judge (AJ).
On August 11, 2000, the AJ ordered the agency to investigate the case
and deliver the report of investigation (ROI) on September 25, 2000.
The agency was cautioned that sanctions could be imposed if the report
was not delivered. Subsequently, the agency filed for an extension of
time to complete the investigation. However, the AJ denied the request
for an extension and ordered the agency to pay $2700.00 to complainant
as a sanction for not investigating the case as ordered.<1> Following
a hearing, the AJ issued a decision finding no discrimination.
Complainant was previously employed by the agency as a Soil
Conservationist, assigned to the same office, and had filed discrimination
complaints against the agency.<2> On April 14, 1997, complainant received
the acting program team leader position (PTL) while retaining his soil
conservationist position.
The AJ concluded that complainant failed to establish a prima facie
case of race, age, and religion discrimination. Specifically, the AJ
found that complainant failed to demonstrate that a similarly situated
employee not in his protected classes was treated differently under
similar circumstances as to each of the three claims.
The AJ concluded that complainant established a prima facie case of
reprisal discrimination because complainant had participated in prior
EEO activity, that he was subjected to an adverse term or condition of
employment subsequent to the activity, and that there was a casual link
between the prior EEO activity and the adverse action. The AJ found
that the management officials named in the prior EEO activity were named
in at least two of the present claims and the previous EEO activity was
ongoing at the time of the filing of the instant complaint.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found concerning
claim 1 that complainant had spent about three months performing soil
conservationist duties as liaison to a local university and also state
coordination duties as acting PTL. However, the AJ further found that
complainant had received an �exceeds� rating on one of his elements for
those duties.
Concerning claim 2, the AJ found that complainant received his initial
performance standards untimely in January 1998, but that complainant
signed the standards in March 1998, and that the standards of all
the subordinate employees of complainant's supervisor were delayed.
Concerning claim 3, the AJ found that complainant did not perform two
positions, but did retain some liaison duties from his prior position
during his transition to his new position, and that complainant was given
credit for these duties in his FY 98 evaluation. The AJ concluded that
these were legitimate, nondiscriminatory reasons for the agency's actions.
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
retaliation. In reaching this conclusion, the AJ found that complainant
has not met his burden of establishing pretext by a preponderance of
the evidence.
The agency's final order implemented the AJ's decision.
CONTENTIONS ON APPEAL
On appeal, complainant states his dissatisfaction with the agency's
processing of his complaint and contends that the AJ erred when he did
not enforce his order requiring the agency to investigate the claims
and submit an ROI. Complainant also argues that he established a prima
facie case of discrimination based on race, age, religion, and reprisal,
and that the agency did not articulated legitimate, nondiscriminatory
reasons for its actions. In response, the agency restates the position
it took in its FAD, and requests that we affirm its final order.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
In the absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof in a Title VII case is a
three-step process as set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973), and its progeny. Complainant has the initial burden
of establishing a prima facie case of discrimination. A prima facie
case of discrimination based on race, religion, or age is established
where complainant has produced sufficient evidence to show that: (1)
he is a member of a protected class; (2) he was subjected to an adverse
employment action; and (3) similarly situated employees outside his
protected class were treated more favorably in like circumstances.
The AJ found that it was undisputed that there was no employee similarly
situated to complainant and therefore there was no one that could be
compared to complainant. The record reflects that the PTL was a new
concept, that complainant was the first PTL, and that there was nobody
else in the office during FY 98 that had a PTL position. The AJ's
finding that complainant did not establish a prima facie case of race,
religion or age discrimination is supported by substantial evidence in
the record. We note that it is not necessary for complainant to rely
strictly on comparative evidence in order to establish an inference
of discriminatory motivation necessary to support a prima facie case.
See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996);
EEOC Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp.,
EEOC Notice No. 915.002, at n.4 (Sept. 18, 1996). However, the ultimate
burden of persuading the trier of fact that the agency intentionally
discriminated against complainant remains at all times with complainant.
See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000)
(quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981)). The record does not contain any other evidence that would
support an inference of discriminatory animus.
Claims of reprisal discrimination are also examined under the tripartite
analysis enunciated in McDonnell Douglas Corporation v. Green, supra.
The Commission has stated that adverse actions need not qualify as
"ultimate employment actions" or materially affect the terms and
conditions of employment to constitute retaliation. Lindsey v. United
States Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC
Compliance Manual, No. 915.003 (May 20, 1998)). Instead, the statutory
retaliation clauses prohibit any adverse treatment that is based upon a
retaliatory motive and is reasonably likely to deter the charging party
or others from engaging in protected activity. Id.
However, other than complainant's belief that management officials
were applying more pressure and loading him up with a �ton of bricks,�
complainant has not offered other sufficient evidence that the agency's
actions were in reprisal for protected EEO activity. Also, the record
does not establish the existence of a retaliatory motive. A review of
the record establishes that complainant failed to present sufficient
evidence that any agency action was in retaliation for complainant's
prior EEO activity. There was substantial evidence in the record to
support the AJ's findings and conclusions on reprisal discrimination.
Concerning complainant's contention, assuming arguendo, that he
had established a prima facie case of discrimination based on race,
age, religion, and reprisal, and that the agency did not articulated
legitimate, nondiscriminatory reasons for its actions, we note that
the AJ found that the agency articulated legitimate, nondiscriminatory
reasons for its actions, as set forth previously. These AJ's findings
are supported by substantial evidence in the record.
On appeal, complainant expresses his dissatisfaction with the agency's
processing of his complaint, and argues that the AJ erred in not
enforcing his order requiring the agency to investigate the claims and
submit an ROI. Even if we were to find this to be AJ error, we note
that it did not affect the ultimate finding that the complainant was not
discriminated against. Additionally, any such error was mitigated by
the fact that the AJ entered an order allowing complainant the right of
discovery; allowed liberal reign as to the scope, manner, and content of
questioning witnesses; accepted untimely exhibits at the hearing; accepted
untimely additional witness requests; and received the testimony of nine
witnesses, all in an effort to provide the opportunity to fill in any
gaps that may have existed in the record. The AJ found that the agency's
inaction during case processing did not appear to have had a material
effect on the processing of the case, and complainant, on appeal, has
not demonstrated otherwise. We note that 29 C.F.R. �1614.109 provides
the AJ with broad discretion in conducting hearings, the development
of the record, the authority to issue sanctions, and taking such other
actions as he deems appropriate. See also Stull v. Department of Justice,
EEOC Appeal No. 01941582 (June 15, 1995). Our review of the proceedings
and the decision does not reveal any evidence that the AJ abused his
discretion in the entry of his orders concerning discovery or in the
conduct of the hearing. Therefore complainant's contention fails to
establish error on the part of the AJ.
CONCLUSION
The Commission finds that the AJ's findings of fact are supported by
substantial evidence in the record and that the AJ's decision properly
summarized the relevant facts and referenced the appropriate regulations,
policies, and laws. We note that complainant failed to present evidence
that any of the agency's actions were in retaliation for complainant's
prior EEO activity or were motivated by discriminatory animus toward
complainant's race, religion, or age. We discern no basis on which to
disturb the AJ's decision. Therefore, after a careful review of the
record, including complainant's contentions on appeal, and arguments
and evidence not specifically addressed in this decision, we AFFIRM the
agency's final order.
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 23, 2002
Date
1 The agency stated in the FAD that it will pay the sanctions.
2 See Collins v. Department of Agriculture, EEOC Appeal No. 01A05616
(September 7, 2001) and Collins v. Department of Agriculture, EEOC Appeal
Nos. 01996922, 01A05687, and 01A10382 (September 14, 2001).