William L. Harris, Complainant,v.Donald H. Rumsfeld, Secretary, Department of Defense, Agency.

Equal Employment Opportunity CommissionMar 22, 2005
01a51391 (E.E.O.C. Mar. 22, 2005)

01a51391

03-22-2005

William L. Harris, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, Agency.


William L. Harris v. Department of Defense

01A51391

March 22, 2005

.

William L. Harris,

Complainant,

v.

Donald H. Rumsfeld,

Secretary,

Department of Defense,

Agency.

Appeal No. 01A51391

Agency No. 9V1M04073F04

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 GS-2005-07, Supply Technician at the agency's Tinker Air Force Base

facility. Complainant sought EEO counseling and subsequently filed a

formal complaint on January 30, 2004, alleging that he was subjected to

a hostile work environment on the bases of race (African-American/Black)

and color (chocolate brown/black) when:

(1) on September 8, 2003, he was asked to perform menial tasks outside

of his regular job responsibilities as a punishment;

numerous unfavorable entries containing false statements were made on

the Supervisor's Employee Brief (AF Form 971) - Part B;

on October 14, 2003, he received a Notice of Proposed Suspension for

three calendar days;

on October 31, 2003, he received a sick leave abuse letter;

on October 31, 2003, he received a Notice of Proposed Reprimand;

on October 31, 2003, he received an unfavorable mid-year review;

on November 4, 2003, his requests for leave on November 5 and 7, 2003,

were denied; and,

on November 25, 2003, November 5 and November 7, 2003, he was carried

absent without leave (AWOL).

Complainant also alleges that he was forced to resign on December 1,

2003, as a result of the alleged harassment based on race and color.

In its FAD dated October 21, 2004, the agency concluded that complainant

did not show that he was discriminated against with regard to the

matters raised in the complaint. Specifically, the FAD found that

the agency articulated legitimate, nondiscriminatory reasons for its

actions. Management testified that complainant's unscheduled absences

caused problems in the work unit. The agency also noted that two of

complainant's co-workers who were Caucasian and white were also issued

sick leave abuse letters. The FAD also found that complainant was marked

AWOL because he absented himself even though his requests for leave had

been denied. The FAD further found that, because the evidence did not

support complainant's belief that he was discriminated against on the

bases of race and color, he could not establish that he was harassed on

those bases.

In regard to his constructive discharge claim, the agency concluded

that complainant did not establish that he was forced to resign because

of harassment based on race and color. Essentially, the agency found

that because complainant could not establish that he was subjected to

harassment based on his race and color, he could not establish that he

was forced to resign because of harassment on those bases.

On appeal, complainant raises no new contentions. The agency did not

file a response to complainant's appeal.

In the absence of direct evidence of discrimination, the allocation of

burdens and order of presentation of proof in a Title VII case alleging

discrimination is a three-step process. McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-803 (1973). First, complainant must establish a prima

facie case of discrimination by presenting facts that, if unexplained,

reasonably give rise to an inference of discrimination; i.e., that a

prohibited consideration was a factor in the adverse employment action.

McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a

legitimate, nondiscriminatory reason for its actions. Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency

is successful, then the complainant must prove, by a preponderance of

the evidence, that the legitimate reason(s) proffered by the agency was

a pretext for discrimination. Id. at 256.

Harassment of an employee that would not occur but for the employee's

race, color, sex, national origin, age, disability, or religion is

unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).

A single incident or group of isolated incidents will not be regarded

as discriminatory harassment unless the conduct is severe. Walker

v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the

harassment is sufficiently severe to trigger a violation of Title VII

must be determined by looking at all the circumstances, including the

frequency of the discriminatory conduct, its severity, whether it is

physically threatening or humiliating, or a mere offensive utterance, and

whether it unreasonably interferes with an employee's work performance.

Harris v. Forklift Systems, 510 U.S. 17 (1993).

To establish a prima facie case of hostile environment harassment,

complainant must show the existence of four elements: (1) he is a member

of a statutorily protected class; (2) he was subjected to harassment in

the form of unwelcome verbal or physical conduct involving the protected

class; (3) the harassment complained of was based on the statutorily

protected class; and (4) the harassment affected a term or condition of

employment and/or had the purpose or effect of unreasonably interfering

with the work environment and/or creating an intimidating, hostile, or

offensive work environment. Humphrey v. United States Postal Service,

EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11.

The central question in a constructive discharge case is whether

the agency, through its unlawful discriminatory behavior, made

complainant's working conditions so difficult that any reasonable

person in complainant's position would feel compelled to resign. Irving

v. Dubuque Packing, 689 F.2d 170 (10th Cir. 1982). The Commission has

adopted a three-pronged test for establishing a constructive discharge.

Complainant must show that: (1) a reasonable person in complainant's

position would have found the working conditions intolerable; (2)

conduct which constituted prohibited discriminatory treatment created

the intolerable working conditions; and (3) complainant's involuntary

resignation resulted from the intolerable working conditions. See

Czarnecki v. Department of Defense, EEOC Appeal No. 01944348 (August

8, 1995). It is well settled that, in most instances, it takes more

than one or two incidents to create the intolerable working conditions

necessary to support a finding of constructive discharge. Nevertheless,

there have been exceptions to this principle, primarily in cases where

the conduct in question is particularly egregious. See Meyer v. Brown and

Root Construction Co., 661 F.2d 369 (5th Cir. 1981) (where the employer,

upon learning that complainant was pregnant, reassigned her from a desk

job to a warehouse job which involved heavy lifting).

The Commission has thoroughly examined the record, but finds no

persuasive evidence that complainant was discriminated against on the

bases of race and color. In reaching this conclusion, we note that the

agency articulated legitimate, nondiscriminatory reasons for its actions.

We also note, that other than mere assertions, complainant has not shown

that these reasons are mere pretext for discriminatory animus based on

race and color.

Based on the foregoing, and under the standards set forth in Harris

v. Forklift Systems, Inc., 510 U.S. 17 (1993), complainant's claim of

hostile work environment must also fail. See Enforcement Guidance on

Harris v. Forklift Systems, Inc. at 3, 6 (March 8, 1994). A prima facie

case of hostile work environment is precluded based on our finding that

complainant failed to establish that any of the actions taken by the

agency were motivated by race and/or color. See Oakley v. United States

Postal Service, EEOC Appeal No. 01982923 (September 21, 2000).

Furthermore, the Commission is not persuaded that complainant was

constructively discharged. Specifically, complainant contends that

he resigned because he was subjected to an increasingly hostile work

environment. In support of this contention, complainant claims that he

was denied leave while his White co-workers were not. Complainant also

contends that he was assigned tasks outside of his normal duties as a

way of retaliating against him.

Under these circumstances, and the evidence presented, we are not

persuaded that a reasonable person in complainant's situation would

have found the agency's conduct so intolerable that a resignation

was warranted. See Harrell v. Department of the Army, EEOC Request

No. 05940652 (May 24, 1995). Therefore, after a careful review of the

record, including arguments and evidence not specifically addressed in

this decision, we AFFIRM the FAD.

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

March 22, 2005

__________________

Date