01991605
05-16-2001
Bernard F. Anderson, Complainant, v. Spencer Abraham, Secretary, Department of Energy, (Western Area Power Administration), Agency.
Bernard F. Anderson v. Department of Energy (Western Area Power
Administration)
01991605
May 16, 2001
.
Bernard F. Anderson,
Complainant,
v.
Spencer Abraham,
Secretary,
Department of Energy,
(Western Area Power Administration),
Agency.
Appeal No. 01991605
Agency No. 97(205) WAPA
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.; and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The
appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleged
that he was discriminated against on the bases of disability (job-related
knee injury, stress, and anxiety) and reprisal (for prior EEO complaints
filed under Title VII) when:
1. During the period of May � July, 1997, his immediate supervisor
(S-1) provided false information concerning his willingness to serve
as Acting Foreman (AF) and perceived him as untruthful by saying, �I
will interrupt you any time you are not telling the truth.�
2. Between November 1995 and January 1996, he was restricted from
reporting safety concerns and violations of regulations in conjunction
with the Federal Employee Occupational Safety and Health Program.
The record reveals that during the relevant time, complainant was
employed as an Electrician, WB-2808(31) at the agency's Bismarck, North
Dakota Upper Great Plains Regional Office. Believing he was a victim
of discrimination, complainant sought EEO counseling and subsequently
filed a formal complaint on September 10, 1997. The agency accepted
and investigated the complaint. The record indicates that, after
complainant either requested that the agency issue a final decision or
failed to request a hearing before an EEOC Administrative Judge within
the time period specified in 29 C.F.R. � 1614.108(f), the agency issued
the instant decision.<1>
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of discrimination either on the basis of disability
or reprisal. In addition, the FAD found that, in any case, the agency
articulated a legitimate, nondiscriminatory reason for S-1's remark with
respect to (1), and that complainant failed to meet the time requirement
for contacting an EEO Counselor with respect to (2), as required by 29
C.F.R. � 1614.105(a)(1).
On appeal, in regard to (1), complainant repeats his contention that
S-1 made false statements about his willingness to be in charge of work
in order to cause him harm and create a hostile working environment .
He again asserts that S-1 indicated that he was a liar by stating, �I will
interrupt you any time you are not telling the truth.� In regard to (2),
complainant submits three letters as evidence that he was restricted from
reporting safety concerns. Finally, in support of his contention that
he is an individual with a disability, complainant submits, among other
items, a letter from his physician and an Office of Workers Compensation
(OWCP) injury report.
In its brief in opposition to complainant's request, the agency notes, in
regard to (1), that the evidence of record establishes that complainant
made written and verbal statements that he preferred not to be placed
in charge of work and that S-1 made the statement about complainant's
not telling the truth in reference to the fact that complainant had
falsely stated that S-1 had issued him a suspension. In regard to
(2), the agency notes that none of the letters submitted by complainant
indicate any actions by management to prevent or restrict the reporting
of safety violations.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Prewitt v. United States Postal Service, 662 F.2d
292, 310 (5th Cir. 1981); and Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545
F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to reprisal cases),
the Commission agrees with the agency that complainant failed to establish
a prima facie case of either reprisal or disability discrimination in
regard to (1) because complainant has not shown that he suffered any
adverse employment action. In reaching this conclusion, we note that
the record shows that complainant repeatedly stated that he did not want
to be in charge of the work and that S-1 made his remark only because
he was not the official who had issued the suspension to complainant
and wanted to set the record straight. Similarly, in regard to (2),
complainant has not in fact shown that he was prevented by management
from reporting safety concerns and violations.
Therefore, after a careful review of the record, including complainant's
other contentions on appeal, the agency's response, and arguments and
evidence not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
May 16, 2001
Date
1 We note that the complaint file does not contain a copy of a letter
informing complainant of his options under EEOC Regulation 29 C.F.R. �
1614.108(f). However, on appeal, complainant does not deny receiving
such a letter, and we therefore assume that he did receive it.