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