Fidencio A. Perez v. Department of the Army
01A04426
March 19, 2002
.
Fidencio A. Perez,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A04426
Agency No. AQFDFO9601G0030
DECISION
INTRODUCTION
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., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act),<1> as amended, 29 U.S.C. § 791 et
seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 et seq.<2> The appeal is accepted pursuant to
29 C.F.R. § 1614.405. For the following reasons, the Commission affirms
the agency's final decision.
ISSUE PRESENTED
Whether complainant established a prima facie case of discrimination on
any basis claimed in his complaint.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Supply Management Specialist, GS-2003-09, at the agency's
Headquarters, 20th Support Group, Camp Carroll, Waegwan, Korea facility.
Complainant sought EEO counseling and subsequently filed a formal
complaint on April 3, 1996, alleging that he was discriminated against
on the bases of race (Mexican-American), sex (male), disability
(major depression with posttraumatic stress and orthopedic), age
(D.O.B. September 19, 1944), and reprisal (prior EEO activity).
Complainant's claims were as follows:
(1) On January 5, 1996, he received a telephone call from the Chief
of the Taegu, Korea, Civilian Personnel Office, Labor and Performance
Management Branch (hereinafter referred to as the Chief), wherein this
official allegedly stated that complainant did not have to contact
the Merit Systems Protection Board (MSPB) about not receiving his
Permanent Change of Station (PCS) orders. The Chief also allegedly
accused complainant of telling lies about her;
(2) The Chief conducted an investigation of complainant based on
allegations of sexual harassment by two female Korean nationals in
order to cause his termination; and
(3) Complainant did not receive the allowances that he should have
received.<3>
Complainant retired with disability pursuant to OPM approval on May
31, 1996.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant failed to meet his
prima facie burden on any basis claimed because complainant did not
show that he had been subjected to an adverse employment decision or
that complainant was treated less favorably than similarly situated
employees not members of his protected groups.
The record reflects that complainant was not denied the allowances,
but the allowances were delayed. However, the Chief, whom complainant
considered unprofessional, had no responsibility in the delay. The record
also reflects that the Chief, on March 16, 1995, conducted interviews
with two female Korean national employees concerning their allegations of
sexual harassment by complainant. The FAD stated that the inquiry was
undertaken to obtain factual information prior to taking disciplinary
action against complainant.
The agency determined that the PCS orders were prepared on January 10,
1996 and were picked up by complainant's unit. Further, the record
reflects that the Chief denied complainant's allegations of discrimination
and that the Chief did not personally know the complainant. The Chief was
not in complainant's supervisory chain and was not in the same activity
as the complainant.
Complainant stated that the reason he alleged that the investigation was
based on reprisal was because he had submitted previous EEO complaints.<4>
Complainant stated that the actions were based on his age because he
believed that the Chief felt she could take advantage of him due to
his age. The Chief stated that she knew complainant's race and sex, but
did not know his age, or prior EEO activity until after a MSPB settlement
agreement was entered into to mitigate his removal to a 75-day suspension.
The Chief further stated that she did not know that complainant had
mental or physical problems until after he filed the EEO complaint and
a worker's compensation claim.
The investigative file reflects that there is no indication that
complainant was treated differently than similarly situated employees, or
that the Chief's actions were in retaliation for previous EEO activity.
Complainant did not demonstrate any pretext for discrimination.
Further there is no indication in the file that the agency knew of
complainant's medical problems, or that complainant had requested,
any type of accommodation for any condition.
CONTENTIONS ON APPEAL
Complainant does not raise any contentions on appeal. The agency
submitted its Agency Brief in Opposition to Appeal. In its Brief, the
agency states that claim 2 is barred by a September 1, 1995 Settlement
Agreement entered into by complainant and the agency to resolve the
pending MSPB claim.
ANALYSIS AND FINDINGS
Claims 1 and 3
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); see, Hochstadt v. Worcestor Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),
aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to
retaliation cases; Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)
(requiring a showing that age was a determinative factor, in the sense
that "but for" age, complainant would not have been subject to the
adverse action at issue). 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(s) 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.
Here, for purposes of further analysis, we will assume that complainant
has established a prima facie case of discrimination based on race, sex,
or age. Next, we turn to consideration of whether the agency articulated
a legitimate, nondiscriminatory reason for its actions.
Concerning the phone call, the record reflects that the Chief was
complainant's point of contact for his MSPB case and that she contacted
complainant after he informed the MSPB that he had not received
his travel orders and that the agency had breached the settlement.
The agency stated that the Chief contacted complainant to resolve the
issue concerning preparation of the orders because the agency could not
prepare orders until he provided personal information to the agency and
requested orders.
Concerning the allowances, the FAD reflects that the allowances were paid,
although late, due to a communications problem, and that the Chief had
no role in the delay of the payment.
After reviewing the entire record, we find that the agency articulated
legitimate, nondiscriminatory reasons for its actions, as set forth above.
Since the agency has stated the reasons for its action, the burden returns
to complainant to demonstrate that the agency's reasons were a pretext
for discrimination, that is, that the agency's reasons were not true
and that the agency was more likely motivated by discriminatory reasons.
The complainant has not met his burden in this regard. Any delay in the
orders and payment of allowances appears to have been the result of a
communication problem and not intentional discrimination. There is no
evidence in the record to establish that complainant's failure to timely
receive the orders or allowances was the result of discrimination.
In a reprisal claim 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 his 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 action. Whitmire
v. Department of the Air Force, 01A00340 (September 25, 2000).
Regarding complainant's claim of reprisal, 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, the Commission has found that
petty slights and trivial annoyances are not actionable, as they are not
likely to deter protected activity, but that more significant retaliatory
treatment could be challenged regardless of the level of harm. See EEOC
Compliance Manual on Retaliation at 8-13 through 8-15 (May 20, 1998).
Here, for purposes of further analysis, we will assume that complainant
has established a prima facie case of discrimination based on reprisal.
Next, we turn to consideration of whether the agency articulated a
legitimate, nondiscriminatory reason for its actions. The record reflects
that the Chief called complainant concerning his inquiry for PCS orders
and stated that complainant could have called her rather than the MSPB.
The call lasted five to ten minutes. The agency stated that the Chief
contacted complainant to resolve the issue concerning preparation of
the orders. Other than complainant's assertion, he has not submitted any
evidence that the phone call was in retaliation for prior EEO activity.
In order to establish a prima facie case of disability discrimination,
complainant must prove, by a preponderance of the evidence, that he was
treated differently than individuals not within his protected group,
or that the agency failed to make a needed reasonable accommodation,
resulting in adverse treatment of complainant. See Sisson v. Helms,
751 F.2d 991, 992-93 (9th Cir.), cert. denied, 474 U.S. 846 (1985).
Assuming arguendo, that complainant had a disability, complainant has
failed to establish that he was treated differently than individuals not
within his protected group. Further, there is no indication in the file
that the Chief knew of any disability, or that complainant requested,
any type of accommodation for any disability for her or anyone else.
Even assuming, arguendo, that complainant presented a prima facie case
of discrimination on the bases alleged, the Commission further finds
that complainant failed to demonstrate by preponderance of the evidence
that the agency's reasons for its actions merely were a pretext for
discrimination. See Washington v. Department of the Navy, EEOC Petition
No. 03900056 (May 31, 1990).
Claim 2
On March 16, 1995, the Chief conducted an investigation of complainant
based on allegations of sexual harassment by two female Korean nationals.
Complainant was removed from federal service for, among other charges, the
sexual harassment of the two females. On September 1, 1995, complainant,
his attorney, and the agency entered into a settlement agreement of
complainant's appeal to the MSPB. The agreement provided, in part, that
complainant's removal was mitigated to a 75-day suspension and a reduction
in pay to GS-9, saved pay. The agreement also provided that complainant
would not institute any legal or administrative proceedings on any
matter which could have been raised prior to the date of the settlement
agreement. Complainant attempted to set aside the settlement agreement
and MSPB denied his request. On July 16, 1996, complainant appealed
to the United States Court of Appeals, which ruled that MSPB did not
abuse its discretion in refusing to set aside the settlement agreement.
Complainant's second claim could have been raised prior to the settlement
agreement and therefore it is barred by the settlement agreement.
CONCLUSION
Therefore, after a careful review of the record, and 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 19, 2002
Date1 The Rehabilitation Act was amended in 1992
to apply the standards in the Americans with Disabilities Act (ADA)
to complaints of discrimination by federal employees or applicants
for employment.
2 On June 7, 2000, a FAD and an unsigned blank Notice of Appeal was
received and processed by the Commission as an appeal from complainant.
3 See Perez v. Department of the Army, EEOC Appeal No. 01966595 (June
18, 1997). The agency's decision to dismiss complainant's allegations
was reversed and remanded to the agency. The agency's request for
reconsideration was denied. See Perez v. Department of the Army, EEOC
Request No. 05970947 (July 22, 1999).
4 Complainant had previously filed EEO complaints on January 20, 1995
and a June 21, 1995, related to the investigation of allegations of
sexual harassment and his termination as a result of the investigation.
Both complaints were dismissed based on the MSPB settlement entered into
on September 1, 1995.
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