01A15289
11-04-2002
Timothy P. Baker Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Timothy P. Baker v. Department of Veterans Affairs
01A15289
November 4, 2002
.
Timothy P. Baker
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A15289
Agency No. 98-3675
DECISION
INTRODUCTION
This appeal involves an equal employment opportunity (�EEO�) complaint
filed by Timothy P. Baker (�complainant�) against his employer, the
Department of Veterans Affairs (�the agency�). Complainant worked
for the agency as a police officer in the agency's medical center in
Jackson, Mississippi. In this capacity, he was often required to issue
parking tickets. He claimed that in August of 1998, the agency's police
dispatcher ordered him to rescind two tickets that complainant had issued
to African American individuals. Complainant, who is a White male,
apparently believed that the dispatcher, who was an African American
female, executed her dispatcher duties in a racist fashion, since she
allegedly only ever rescinded tickets issued to African Americans.
Complainant purportedly told the agency's Chief of Police about this
incident. Complainant claimed, however, that nothing was ever done about
the supposed racial favoritism tainting the agency's ticket-issuance
policies. Instead, complainant claimed, the Chief of Police began to
retaliate against complainant for criticizing this practice (by, for
example, switching his tour of duty, erroneously charging him with being
absent without leave, and attempting to have him arrested). Consequently,
complainant filed a formal EEO complaint against the agency on or around
September 23, 1998. In this complaint, complainant asserted that the
agency discriminated against him based on his race (White), in violation
of Title VII of the Civil Rights Act of 1964 (�Title VII�), as amended, 42
U.S.C. � 2000e et seq., by subjecting him to a hostile work environment.
Complainant would later argue that this environment was so intolerable,
that he was constructively discharged from his position, as well.
He did indeed resign from his position on or around October 19, 1998.<1>
The agency addressed these allegations in a detailed final agency decision
(�FAD�) issued on or around August 16, 2001. In this FAD, the agency
analyzed complainant's complaint as raising claims of race-based and
retaliation-related disparate treatment and harassment. The agency
ultimately concluded, though, that complainant had not proven any illegal
employment discrimination had occurred. Complainant promptly filed a
notice challenging this FAD with us, the United States Equal Employment
Opportunity Commission (�EEOC� or �this Commission�).<2> We accepted
complainant's notice and docketed it as this appeal.
We are now issuing this decision under the authority granted to us by
29 C.F.R. � 1614.405(a). Under this same regulation, we must review
the FAD in question de novo (or �anew�). See 29 C.F.R. � 1614.405(a).
This means that in deciding this case, we can accept (if accurate)
or reject (if erroneous) the agency's factual and legal conclusions.
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (rev. Nov. 9, 1999) (�EEO MD-110�), at 9-15. Accordingly, we have
carefully reviewed the entire record before us in our attempt to discern
whether a preponderance of the evidence warrants a rejection of the
agency's determinations � or supports any finding of illegal employment
discrimination here. See 29 C.F.R. � 1614.405(a). We conclude that it
does not.
Complainant's complaint raises claims of Title VII-proscribed race-based
and retaliation-related disparate treatment and/or harassment.
With respect to complainant's disparate treatment allegations, where
there is no direct evidence of any illegal motive for the agency
actions in question, an evidentiary �burden of production� is placed
initially on the complainant to put forth a prima facie case of unlawful
discrimination. The complainant may do so by presenting facts which,
if unexplained, reasonably give rise to an inference of discrimination
(i.e., that a prohibited consideration was a factor in the relevant
adverse employment actions). If complainant successfully establishes
such a prima facie case, the evidentiary burden of production then
shifts to the agency to articulate legitimate, non-discriminatory
reasons for its ostensibly objectionable conduct. If and when the
agency offers such a lawful explanation, the evidentiary burden of
production shifts (one last time) back to the complainant to show
that the explanation offered is but a pretext for the agency's true,
prohibited discriminatory intent. See McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Furnco Construction Corp. v. Waters, 438 U.S. 567
(1978); Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24
(1978); Texas Department of Community Affairs v. Burdine, 450 U.S. 248
(1981); United States Postal Service Board of Governors v. Aikens, 460
U.S. 711 (1983); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993);
and Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000).
Notwithstanding these shifting burdens of production, however, in any
Title VII claim of disparate treatment, the complainant at all times
carries the ultimate burden of persuading the finder of fact � by a
preponderance of (albeit circumstantial) evidence � that he or she was a
victim of intentional discrimination. See, e.g., Sweeney, 439 U.S. at 29
(Stevens, J., dissenting); Burdine, 450 U.S. at 256; Aikens, 460 U.S. at
716; St. Mary's Honor Center, 509 U.S. at 507, 511, 518; and Reeves,
530 U.S. at 143. Complainant has not met this burden here with respect
to his various claims. Even if we assume for argument's sake that he
satisfied his initial obligation to put forth a prima facie case of
race-based and/or retaliation-related disparate treatment, the agency
responded accordingly. That is, and as the agency explained in its FAD,
the agency provided various legitimate, non-discriminatory reasons for
the agency actions in question. In our view, complainant failed to prove
that the agency's facially legitimate, non-discriminatory explanations
were a pretext for any prohibited motivation. The preponderance of the
evidence simply does not support the notion that complainant was treated
disparately because he is White or engaged in protected EEO activity.
Cf. St. Mary's Honor Center, 509 U.S. at 515, 519 (holding that �a
reason cannot be proved to be �a pretext for discrimination' unless it is
shown both that the real reason was false, and that discrimination was
the real reason� for the defendant's employment action, and noting that
�[i]t is not enough . . . to disbelieve the employer; the fact finder
must believe the plaintiff's explanation of intentional discrimination�).
Similarly, the record does not support a finding that complainant
was subjected to any sort of prohibited harassment, either. As this
Commission's guidance points out:
the anti-discrimination statutes are not a �general civility code.�
Thus, federal law does not prohibit simple teasing, offhand comments,
or isolated incidents that are not �extremely serious.� Rather, the
conduct must be �so objectively offensive as to alter the �conditions'
of the victim's employment.� The conditions of employment are altered
only if the harassment culminated in a tangible employment action or
was sufficiently severe or pervasive to create a hostile work environment.
EEOC Notice No. 915.002, Enforcement Guidance: Vicarious Employer
Liability for Unlawful Harassment by Supervisors (June 18, 1999) (web
version) (�Vicarious Liability Enforcement Guidance�), at 4 [internal
notes and citations omitted].
Complainant asserted that the actions of the dispatcher and Chief of
Police created a �hostile work environment.� Even if we assume for
argument's sake that these actions were severe or pervasive enough to
create a hostile work environment, we still could not find the agency
liable for unlawful harassment here. To prove a case of harassment
under Title VII, complainant must demonstrate that agency officials
harassed him because he is White and/or engaged in prior EEO activity.
See Vicarious Liability Enforcement Guidance, at 4 (providing
that �[h]arassment does not violate federal law unless it involves
discriminatory treatment on the basis of race, color, sex, religion,
national origin, age of 40 or older, disability, or protected activity
under the anti-discrimination statutes�). As we noted above, however, we
are not convinced the agency took any of the challenged actions because
of complainant's race or prior protected activity. Consequently, we
cannot hold the agency liable for illegal harassment-based discrimination.
Therefore, we conclude that the FAD in question should be affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if 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 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; see also EEO MD-110, at 9-18. 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 the
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with the 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)
Complainant has the right to file a civil action in an appropriate United
States District Court within ninety (90) calendar days from the date that
complainant receives this decision. If complainant files a civil action,
complainant 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 complainant's case in court. �Agency� or �department�
means the national organization, and not the local office, facility or
department in which complainant works. If complainant files a request
to reconsider and also files a civil action, filing a civil action will
terminate the administrative processing of the complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If complainant decides to file a civil action, and if complainant does
not have or cannot afford the services of an attorney, complainant may
request that the Court appoint an attorney to represent complainant and
that the Court permit complainant 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.; and 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 complainant's 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 entitled
�Right to File A Civil Action.�
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 4, 2002
__________________
Date
1The addition of the constructive discharge element to complainant's
complaint rendered it a �mixed-case complaint� (i.e., a complaint filed
with a federal agency based on race, color, religion, sex, national
origin, age or disability related to or stemming from an action that
can be appealed to the Merit Systems Protection Board (�MSPB�)). See 29
C.F.R. � 1614.302(a)(1).
2 Upon issuance of the Report of Investigation, the agency advised
complainant of his right to request a hearing before an EEOC
Administrative Judge. Complainant requested a hearing, but the
Administrative Judge ultimately remanded the complaint to the agency
based on complainant's failure to comply with her orders. Thereafter,
the FAD specifically informed complainant that he could appeal the
agency decision on his mixed case complaint to the MSPB � not to EEOC.
In the cover letter sent to complainant along with complainant's copy of
the FAD, the agency told complainant that if he was �dissatisfied with
this final decision, you may appeal in accordance with the statement of
appeal rights contained in the decision.� Cover Letter (Aug. 17, 2001).
However, this cover letter also stated that �enclosed is EEOC Form 573
for use if you wish to file an appeal.� Id. That form, of course,
is the form used to file an appeal with EEOC � not the MSPB. Given
these conflicting signals, complainant filed an appeal of his alleged
constructive discharge with the MSPB on or around the very same day he
filed this appeal with EEOC. On November 2, 2001, an MSPB administrative
judge dismissed complainant's MSPB appeal without addressing any of
complainant's EEO claims, specifically. This initial MSPB decision
did not become final until December 7, 2001 (after complainant failed
to appeal it to the full MSPB). Thus, at the time complainant filed
this appeal with EEOC � because the MSPB had not yet issued a final
decision on his mixed case complaint � we did not have jurisdiction over
this matter. See 29 C.F.R. �� 1614.302(d)(3), 1614.303(a). However,
given the contradictory and confusing appeal rights the agency gave
complainant, we will exercise discretion to accept complainant's appeal
to EEOC anyway. Cf. Jackson v. United States Postal Service (Allegheny
Area), EEOC Appeal No. 01993133 (Oct. 30, 2001).