01A14530
12-03-2002
Weldon W. Woodward, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Weldon W. Woodward v. Department of the Treasury
01A14530
December 3, 2002
.
Weldon W. Woodward,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A14530
Agency No. 00-4148 & 00-4160
DECISION
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. For the following reasons, the Commission AFFIRMS
the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Tax Examining Assistant at the agency's Kansas City Service Center,
Kansas City, Missouri facility. Complainant sought EEO counseling and
subsequently filed formal complaints on February 29, 2000, and on March
15, 2000 alleging that he was discriminated against on the basis of
reprisal for prior EEO activity when:
(1) he was denied 3 hours of Administrative Leave on November 23, 1999;
(2) his service computation date was changed;
(3) he was given an unfair performance appraisal on February 11, 2000.<1>
All procedural requirements were followed and complainant requested that
the agency issue a final decision.
In its final decision, the agency concluded that complainant stated
a prima facie case of reprisal in that he had previously filed EEO
complaints, his Group Manager (GM) and Branch Chief (BC) were aware
of his protected activity and the actions complained of were arguably
adverse. The agency further found that because complainant had ongoing
EEO activity at the time of the adverse actions, he established a causal
connection sufficient to infer a discriminatory motive based on reprisal.
The agency concluded, however, that it had legitimate non-discriminatory
reasons for taking the actions in question and that there was no proof
of discrimination by a preponderance of the evidence.
On appeal, complainant apparently raises issues that were not part of
his formal complaints but that have been raised in another complaint.<2>
The agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
The prima facie inquiry may be dispensed with in this case, however,
since the agency has articulated legitimate and nondiscriminatory
reasons for its conduct. See United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997).
To ultimately prevail, complainant must prove, by a preponderance of the
evidence, that the agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997); Pavelka v. Department of the Navy, EEOC Request
No. 05950351 (December 14, 1995).
In addition, a complainant may establish a prima facie case of reprisal
by showing that: (1) he engaged in a protected activity; (2) the agency
was aware of the protected activity; (3) subsequently, he was subjected
to adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse treatment. Hochstadt v. Worcester
Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.),
aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Department of
Veteran Affairs, EEOC Request No. 05960473 (November 20, 1997) Whitmire
v. Department of the Air Force, EEOC Appeal No. 01A00340 (September
25, 2000).
Based on these principles, the Commission concludes that the agency stated
legitimate non-discriminatory reasons for each of the actions at issue and
that complainant failed to demonstrate the explanations were a pretext
for discrimination. Specifically, GM stated that complainant requested
administrative leave related to the presence of noxious odors in the
workplace on November 23, 1999. GM stated she consulted with the building
manager and the union before a decision was made to grant break time or an
early lunch break. She further stated that no other employees requested
administrative leave or other types of leave related to the incident.
Complainant requested and was granted sick leave. She acknowledged that
higher management officials denied his request for administrative leave.
Complainant did not establish that GM or other managers had a retaliatory
motive when his request for administrative leave was denied and we
conclude there was no discrimination as to this issue.
Complainant alleged reprisal when he received a notice from the personnel
office that his service computation date was changed to reflect a break
in service from April 1991 to June 1991. The record reflects that
complainant was reinstated pursuant to a Settlement Agreement of an EEO
claim which established the date of June 1991 for his reinstatement.
To the extent that complainant alleges a breach of the settlement
agreement on a separate issue from that involved herein, complainant
must notify the agency of such in accordance with 29 C.F.R. �1614.504.
Since the record does not indicate that complainant has notified the
agency according to this regulation, this decision will not address an
alleged breach of that agreement.
Additionally, complainant has not demonstrated that any of his managers
were responsible for the change in his service computation date.
The record supports that the agency engaged in a review of all Official
Personnel Files during the time in question and adjusted complainant's
record to reflect a two month break in service. Complainant did not
establish that there was a discriminatory motive involved in the agency's
action or that the agency's explanation was a pretext for reprisal.
Therefore, we conclude that there was no discrimination with respect to
this issue.
Lastly, complainant alleged that his performance appraisal for the
period of December 1, 1998 to December 20, 1999 was lower in the
elements of �quantity and quality� than his previous rating and that
he was not informed about the application of a learning curve to GM's
rating or that the performance period would be extended. GM stated
that the performance period was extended due to the brief time that
complainant was in her group. She further stated that employees are not
rated for the time period they are on a learning curve in a new job and
that complainant did not have enough time after completing his training
period to be fully rated on measured elements.
The record also reflects that complainant's job elements changed from
his previous appraisal to the time of his mid-year review and that
he was rated �Exceeds Fully Successful�. Consequently, complainant
was not rated in the elements of quantity and quality in his previous
performance appraisal. His overall rating did not change from his
previous appraisal. In addition, the concept of a learning curve
appeared to benefit complainant because he was not held to the same
standard as others who were not new to the job as he. As a result, he
was only rated for the time he worked outside of the training period.
Based on these facts, we cannot conclude that complainant was treated
less favorably than others outside of his protected group or that he
was subjected to discrimination based on reprisal.
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 decision.
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 3, 2002
__________________
Date
1The agency dismissed a number of claims
which were resolved during Alternative Dispute Resolution (ADR) and
one which duplicated a claim previously raised in another complaint.
Complainant did not contest any of these dismissals and as such, they
are not addressed in this decision.
2Complainant raised an issue regarding a Do Not Rehire Order issued in
July 2000 which is not related to the instant appeal but is the subject
of a separate appeal and will be discussed in a separate decision.