E.E.O.C. *1 Office of Federal Operations Rosalio Garcia v. Department of Agriculture Appeal No. 01831493 April 13, 1984 DECISION INTRODUCTION On April 13, 1983, Rosalio Garcia (hereinafter referred to as appellant) initiated an appeal to the Equal Employment Opportunity Commission (EEOC) from the final decision of the Department of Agriculture (hereinafter referred to as agency) on his equal employment opportunity complaint. Appellant alleged discrimination based on national origin (Mexican-American), and religion (Roman Catholic), in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq. The final agency decision is dated March 24, 1983. The appeal was accepted by the Commission in accordance with the provisions of EEOC Order No. 960, as amended. BACKGROUND By letter dated February 4, 1980, appellant, a former Biological Technician, GS-5, filed a complaint alleging a series of charges against his former supervisor, the alleged discriminating official (ADO). Appellant asserted that he had been constructively discharged on June 27, 1978,1 due to his national origin and religion. He began his employment with the agency in 1964. The ADO, a Research Geneticist, is an Anglo-American and a member of the Church of Latter Day Saints (the Mormons). Appellant and the ADO worked together for approximately five years. Appellant's duties entailed that he be out in the field, as well as within the view of the ADO. Appellant based his allegations of discrimination on the treatment he had received compared to that of the other laboratory technician, who is Anglo-American and Protestant. The events leading to appellant's resignation are somewhat involved. According to appellant, he and his supervisor worked satisfactorily together until appellant became ill in May, 1975. According to appellant, the ADO accused him of faking his illness. Appellant claimed he called the ADO 'a few dirty names' and the ADO's attitude towards him changed for the worse. The incidents in appellant's affidavit and complaint concern religion and national origin. Appellant contended that the ADO made continuous efforts to convert him to the Mormon faith. Specifically, he stated that the ADO kept religious literature in his office and brought in religious tapes. He said that at first the ADO never offered him any of the literature, but then the ADO brought the tape player to the greenhouse and increased his attempts to convert appellant. Appellant alleged that the ADO sent Mormon missionaries to his house for over a month. The ADO also allegedly slurred the Roman Catholic faith to appellant. In addition, appellant contended that summer employees were Anglo-American and Mormon, and that his replacement was a Mormon. The incidents concerning national origin were allegedly continuous. Appellant stated that the ADO made insulting remarks to him when they saw Border Patrol Officers, i.e., 'Have you got your green card today?' and 'Hey Charlie, you better hide, here they come.' These comments implied appellant was an illegal alien. *2 In addition, when appellant was to attend a speech by the Mexican-American governor of the state, the ADO made a comment which suggested appellant was a 'hit man' for the Mexican Mafia. The ADO also allegedly made derogatory remarks about the 'inferiority' of Mexican-American. He told appellant when he changed his hair style to an 'Afro', that he looked as though he were a black man. As their working relationship deteriorated, appellant contended that the ADO made him work overtime, arrive at work early, work on the weekends and use his personal car for official business. He also asserted that he was not allowed to perform all of his duties. He claimed that as a result of the harsh treatment, he developed ulcers and emotional disturbances. As further evidence of the harassment he suffered, he noted that it was common practice for anyone in the laboratory, including the ADO, to occasionally run personal errands for a few minutes during the work day. Nevertheless, he was placed on absent without leave (AWOL) status on two occasions, i.e., April 19, and 21, 1978. He acknowledged that he had driven by his home to check on his son, and that the agency Administrative Technician had driven to his home to tell him to go back to work. He alleged that his resignation was the culmination of an incident which occurred on May 23, 1978. Prior to that date, contaminated tissue cultures had hampered the work of the laboratory. The source of the contamination was not apparent. However, the ADO suspected that someone within the laboratory was intentionally sabotaging the cultures.2 Without informing other agency officials, the ADO devised a method to catch that individual. That is, he obtained yellow tracer powder from the university police station to cover the caps of the bottles containing the culture. Using an ultraviolet light, the yellow powder would be observable on the fingers of the saboteur. On May 23, 1978, appellant alleged that the ADO accused him and his wife (who worked in the agency on another floor) of tampering with the tissue culture. After the ADO determined that the bottles had been disturbed, he requested that appellant place his hands and keys under the ultraviolet light for examination. The ADO observed small blue fluorescent spots on the inside of appellant's left thumb. At that point, appellant alleged that the ADO requested that appellant call his wife for a similar examination. The ADO then called the Administrative Technician, supposedly to have him confirm the ADO's suspicions. After appellant's wife came to the office, blue fluorescent spots were also observed on her hands and keys. Supposedly, the Administrative Technician asked that his hands be viewed under the ultraviolet light, which also evidenced fluorescent spots. As all these events occurred, appellant claimed two plain-clothes university police officers and an FBI agent were standing just outside the door to the laboratory. *3 Appellant claimed the ADO told him. 'You get out of here, I don't want to see your face or your body on the campus. If it's the last think I do I'll see you in prison.' According to the affidavit of appellant, the Administrative Technician then told appellant he had to go to the university police station to be fingerprinted and to take a lie detector test. Supposedly when the Administrative Technician brought resignation forms for appellant, he asked for 24 hours to hink over the matter. On the same day as the incident, an agency Employee Relations Specialist told appellant the ADO could not fire him and to go back to work. Instead appellant asked to be placed on administrative leave. In an effort to alleviate the situation in the laboratory, the Specialist told the ADO to place appellant on a work schedule to reduce the amount of personal contact between them while the agency tried to find another placement for appellant. The Employee Relations Specialist assured appellant that the ADO had no agency authority to fire him, but that he had rightfully been charged AWOL from April 19, and 21, 1978, as well as for April 22, 1978. Appellant requested two weeks leave. He claimed that during that time, the ADO made harassing telephone calls to his home. He stated that he was forced to get an unlisted number the third week in June, 1978. Upon his return to work on June 26, 1978, he claimed that the ADO ordered him to count over 1000 laboratory glasses in fifteen minutes and to dig a ditch the next day. He resigned the next day. On the Standard Form 52, appellant gave the following as his reason: I can no longer work at my job. Because of verbal accusation brought against me on the part. And (the ADO) has gone as far as accusing me & wife of sabotage. I no longer feel at ease and can no longer be productive. He claimed in his complaint that the incidents outlined and his supervisor's prejudicial statements were 'too much for him to emotionally remain under the supervision and control' of the ADO. The record showed that appellant was placed on restricted leave on January 11, 1978. He was AWOL for portions of April 19, and 21, 1978. On May 17, 1978, and again on June 20, 1978, he received a written proposal of suspension to cover June 28 and 29, 1978. His resignation was effective June 27, 1978. Appellant further contended that the ADO had prevented his securing another position by giving him bad recommendations for approximately 70 jobs. In his affidavit, appellant's requested remedies included: 1) reinstatement to the same grade with step increase or pay raise; 2) job training and a 20-year written contract giving him the option of breaking it or retiring at age 55 without penalty; 3) backpay and insurance paid for the next 20 years; 4) exculpating letters regarding the charge of contamination; 5) $5,000 savings bonds for each of his children's education; *4 6) $15,000 placed in his retirement fund to cover the 6,470.50 he had to withdraw; 7) $2,700 to be paid to the State of New Mexico Employment Benefit system to cover money awarded to appellant; 8) $1,800 to be paid to the Welfare Food Stamp Program; 9) $1,000 for medical bills and $15,000 he borrowed; 10) lawyer's fees; 11) $25,000 to be given to his children at the age of 25; and 12) $150,000,000 for punitive damages. The EEO Investigative Report contained detailed affidavits from many of the individuals mentioned in appellant's complaint and affidavit, as well as affidavits from his sister and nephew. Appellant's wife stated that she assumed the ADO had sent the missionaries to their home for a week and a half. Appellant had claimed that the visits extended for more than a month. His wife also indicated that the ADO had apologized to her and explained that the fluorescence on her hands was probably due to make-up. Appellant's supervisor prior to the ADO submitted an affidavit stating that appellant was a dedicated, dependable and conscientious employee who was totally trustworthy. He stated that for a prolonged period before he retired, appellant had told him the ADO was trying to convert him to the Mormon faith. He also stated that a heat resistant bacterium was difficult to eliminate. The affidavit of a Plant Pathologist who had supervised appellant intermittently affirmed that appellant was a conscientious employee. He too stated that appellant had told him many times that the ADO was attempting to convert him. He expressed the view that the contamination was due to a heat resistant bacterium and that appellant could not have caused the problem. The affidavit of the Administrative Technician, also partly of Mexican-American ancestry, stated that in the past the ADO had asked him to check on appellant while the ADO was away from the laboratory. He indicated that appellant was AWOL for portions of the work days of April 19, and 21, 1978. He contradicted appellant's contention that employees were allowed to run personal errands during the work day. He denied that he had suggested that appellant be fingerprinted or submit to a lie detector test. Rather, he claimed that appellant himself stated that he wanted to be fingerprinted and given a polygraph test to establish his innocence. After they reached the police station, appellant changed his mind. The Administrative Technician also denied that he gave appellant a resignation form to sign. Additionally, he stated that he too suspected appellant in the contamination incident because the appellant, not in good health, was attempting to get a disability retirement. He also stated that the relationship between the ADO and the appellant was very strained. Appellant's co-worker submitted an affidavit stating that prior to appellant's arrival at work on May 23, 1978, the ADO had asked him to place his hands under the ultraviolet light so that the ADO could check for evidence of fluorescence. As to the ADO's religious material, this employee noted that the ADO played the tapes in the privacy of his office during his lunch period. *5 The ADO's affidavit contradicted appellant's allegation in significant respects. The ADO denied appellant had ever called him 'dirty names'. Rather the ADO suggested that he had had ongoing problems with appellant's attendance and job performance. Appellant's failure to water plants in December, 1977, resulted in the death of the plants. The ADO claimed appellant could not be reached at times on days he was supposed to be present at work. This necessitated placing him on restricted leave. When appellant supposedly did not adhere to the restrictions, he was placed on AWOL status and suspended for two days. Prior to the days of suspension, he resigned. The ADO also admitted that prior to the resignation, he had done some spot-checking on appellant by calling him on the telephone and driving by his residence to make certain he did not go home during working hours. The ADO denied that he had made disparaging remarks about appellant's Mexican-American heritage. He admitted, however, that he had joked with appellant once upon encountering border patrolmen. He labeled as false the charge that he had referred to appellant as a 'hit man' for the Mexican Mafia. The ADO stated that he had never assigned appellant extra duties to prevent his attending speeches by the state governor or the agency head. Rather, he explained that appellant's duties sometimes necessitated he perform certain functions during crucial stages of experiments. The ADO asserted that appellant himself initiated questions about the Mormon religion and he told appellant that perhaps Mormon missionaries could answer his questions. He denied sending the missionaries to appellant's home. With respect to the incident of contamination, the ADO explained that he had sought the assistance of campus police and the FBI to solve the problem. The FBI declined to be involved. For awhile, campus police monitored the laboratory with a camera without success. Over a period of time, he decided that the contamination was intentional. Neither the police nor the FBI was present during the incident on May 23, 1978. He claimed appellant wanted to call his wife, and requested that he be fingerprinted and allowed to take a lie detector test. The ADO acknowledged that the material on the hands of appellant and his wife was not related to the tracing material he had used as bait. He also stated that he had contacted the Administrative Technician to act as a witness. After the incident, the ADO noted that he began receiving harassing telephone calls at his home. A trace put on two of the calls supposedly revealed they were placed from appellant's home and the home of appellant's mother. During the calls, no one would speak on the other end of the line. After appellant's resignation, the ADO stated that he drove by appellant's house to determine if the calls he was receiving coincided with appellant's presence at home. The ADO also stated that the day after the incident, he had assigned appellant to wash glassware, and to cover the floor with crushed gravel the next day. He acknowledged that subsequent to appellant's departure, he had been contacted twice as a reference but was unable to vouch for appellant's dependability. *6 The Investigator's Report included shorter affidavits from other parties in the case. The FBI agent said he was never outside the ADO's office on May 23, 1978. The campus policemen stated they were not present at the ADO's door during the incident on May 23, 1978. The ADO's secretary asserted that appellant was not on an errand using money withdrawn from her custody on April 19, or 21, 1978. The Associate Professor of Biology denied he had told appellant the contamination was caused by a thermophilic bacterium. Moreover, affidavits from a medical technologist and a pathologist verified that no known virus or bacteria could survive the sterilization process used in the laboratory. The supervisor on a job which appellant had sought denied that the ADO has claimed that appellant was not fit to be a dogcatcher. The agency file also contained affidavits from appellant's family members. These two sworn affidavits stated that appellant frequently came to the gift shop were his sister was employed all hours of the work day. In addition, appellant had often been observed driving around the town during working hours. His sister indicated that for the past two years, appellant had made harassing telephone calls all hours of the day and night to her home and hung up without saying anything when the family answered. She expressed the view that appellant was in need of psychiatric help. Another family member expressed the view that appellant was prejudiced against Mormons based on his reaction to family friends who happened to be Mormons. Supposedly appellant criticized and belittled the friends' religion and made unkind remarks about the religion. This family member also observed appellant's car parked at the gift shop where appellant's sister worked during working hours. These two affidavits contained other statements questioning the stability and integrity of appellant. The file showed that appellant filed a civil action against the ADO slander. That action was dismissed for failure to state a claim under the Federal Tort Claims Act. He also filed an action with the Merit Systems Protection Board. However, the appeal was dismissed as untimely filed. Other miscellaneous documents included a letter from a doctor dated September 22, 1967, establishing that appellant was at that time diagnosed as having an active duodenal ulcer with 30% gastric retention. In his complaint, filed more than 9 years later, appellant claimed his difficulties with the ADO caused him to develop ulcers. After the agency conducted an investigation and issued a proposed disposition finding no discrimination, appellant requested a hearing before a Commission Complaints Examiner. The Examiner recommended a finding of discrimination based on national origin. She found that appellant had been constructively discharged and that the agency had not rebutted the inference of discrimination. The agency rejected the recommendation of the Examiner and entered a decision finding no discrimination based on national origin or religion. The agency acknowledged that appellant had established a prima facie case of discrimination. Nevertheless, the agency noted that appellant provided no corroboration concerning the alleged disparaging remarks or specific information as to dates and times when he was forced to assume additional duties. The agency also asserted that there was no disparate treatment with respect to the suspension since the employee with whom appellant compared himself corrected his behavior once he received an oral warning and was threatened concerning the timely receipt of his within grade increase. *7 As to the contamination incident, the agency stated that the ADO had 'abused his authority and was wrong to level such serious accusations without sufficient proof.' Nevertheless, the agency felt that the ADO had good reason to at least suspect appellant and that he was not motivated by animus due to appellant's national origin or religion. The agency also asserted that appellant was not constructively discharged. An unsuccessful attempt was made to secure a reassignment for appellant and he was assured that despite the ADO's actions, he had not lost his job. On appeal to the Commission, the appellant suggested that the inherently unequal positions of a supervisor and a supervisee made the ADO's proselytizing of his religion discriminatory and oppressive. He noted too that he was disciplined for a much less serious offense (leaving work early to go home) than the offense of his co-worker (leaving work early to drink alcohol). ANALYSIS AND FINDINGS Resolution of this appeal requires consideration of three major issues. The first is whether the agency discriminated against appellant because of his religion by forcing him to listen to religious tapes during working hours and to submit to visits from Mormon missionaries after work. The second issue is whether the agency discriminated against appellant because of his national origin by forcing him to work in an atmosphere where he heard disparaging remarks about Mexican-Americans. A subsidiary issue of the above two is whether appellant was harassed because of his religion and national origin by being forced to work overtime, to arrive early, to use his personal car for business, and not being allowed to run his personal errands during working hours. The third issue is whether the agency discriminated against appellant because of his national origin and religion by constructively discharging him on June 27, 1978. The U.S. Supreme Court in Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), delineated the basic allocation of burdens and order of presentation of proof in a Title VII case in which the complainant alleges disparate treatment. To begin, the complainant must establish a prima facie case of discrimination, i.e., facts which if unexplained reasonably give rise to an inference of discrimination. With respect to the first allegation of religious discrimination, it should be noted that the order and allocation of proof in a disparate treatment religious case would follow traditional disparate treatment proof principles. Here appellant established a prima facie case by showing that he is a member of a protected group (Roman Catholics), that he considered coercive some of his conditions of employment (e.g., religious literature in the office, the playing of religious tapes in the office, and subsequent visits from Mormon missionaries in the evening hours), and that some adverse treatment followed his failure to convert to the Mormon faith. *8 To establish a prima facie case of discrimination based on national origin regarding the second allegation, appellant would have to show that he was subjected to remarks or jokes about his national origin (e.g., Mexican Mafia, comments about green cards, etc.); that these comments created a negative work environment or atmosphere; that this atmosphere was pervasive and ongoing in the agency facility; and that agency management officials must have become aware of the situation, yet took no significant action to correct it, even up to the present time. See Taylor v. Jones, 489 F.Supp. 498 (E.D. Ark. 1980). Employer toleration of a discriminatory work environment violates Title VII. Taylor v. Jones, 653 F.2d 1193 (8th Cir. 1981). Such a finding requires more than an allegation that an employee has been the object of an isolated casual ethnic slur. Cariddi v. Kansas City Chiefs Football Club, 568 F.2d 87 (8th Cir. 1977). The question thus becomes whether the incidents described by appellant rise to the level necessary to constitute a violation of Title VII. The derogatory ethnic jokes made by the ADO were not isolated incidents, although there is no indication in the file that appellant brought the situation to the attention of other agency officials. Nevertheless, the Commission will accept the agency's determination in its final decision that appellant did indeed establish a prima facie case of discrimination based on national origin. With regard to the subsidiary issue of harassment due to religion and national origin, the appellant established a prima facie case by showing that he was a member of both protected groups; that prior to the arrival of the ADO in this case, he had run errands during office hours, worked shorter hours, not used his personal car for business purposes, and not worked on weekends; that after the ADO's arrival, he worked longer hours, and was not allowed to run personal errands. The third allegation of discrimination concerned the question of constructive discharge. In Bourque v. Powell Electrical Manufacturing Co., 617 F.2d 61 (5th Cir. 1980), the Fifth Circuit stated that '(t)o find constructive discharge we believe that 'the trier of fact must be satisfied that the . . . working conditions would have , been so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign.' ' Id. at 65. See Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 119 (1st Cir. 1977). In a recent opinion regarding a private sector complaint,3 the Commission stated that the following elements must be present to establish a constructive discharge: 1) a reasonable person in the charging party's position would have found the working conditions intolerable, *9 2) conduct that constituted a Title VII violation against the charging party created the intolerable working conditions, and 3) the charging party's involuntary resignation resulted from the intolerable working conditions. Here appellant did not establish the elements for a prima facie case of constructive discharge. A reasonable person would have found the working conditions (i.e., being asked to submit to an ultraviolet light test and being accused of sabotaging tissue cultures) intolerable. However, the fact that appellant was so accused is not evidence of a Title VII violation. There is no evidence that he was accused because he was Mexican-American or a Catholic. Rather, his immediate supervisor was attempting to determine the source of contamination of his experiments. He asked appellant's co-worker, who was neither Mexican-American nor Catholic to submit to the test of the ultraviolet light. He also asked a Mormon student worker to place her hands under the ultraviolet light so that he could check for fluorescent spots. At the hearing, appellant admitted that he had asked to be fingerprinted and given a lie detector test. His wife testified that the Administrative Technician had suggested they go to the police station to be fingerprinted and given a lie detector test. This is not to suggest in any way that the ADO's conduct was anything but ultra vires. His actions showed extremely poor judgment and great insensitivity. Yet he did ask non-Mexican-American, non-Catholic employees to place their hands under the lights so that he could check for telltale fluorescent spots. There was no disparate treatment in this instance. The record showed that the ill will between appellant and the ADO in this case extended back further than May 23, 1978. Apparently, the ADO perceived appellant as a problem employee since sometimes he would not be able to locate appellant at specified locations. He had placed appellant on restricted leave and had initiated disciplinary action against him for being AWOL on April 19, and 21, 1978. The record established that appellant was legitimately charged AWOL for those two dates and was to be suspended for two days in late June, 1978. All of these factors no doubt influenced appellant's decision to resign. It is true that appellant was under a great deal of pressure because of the situation between him and his supervisor. However, the agency Employee Relations Specialist had informed appellant that he was not being fired and that attempts would be made to place him in another setting. Unfortunately, those attempts did not immediately prove fruitless. The Commission also believes that appellant himself could have improved the situation by not leaving his post to go home to check on his son or water his grass. Employees are expected to give eight hours work for eight hours pay. It is not reasonable to suggest that an individual should be free to run his personal errands during the same time that he should be working. An attitude such as this would obviously cause a supervisor to monitor an employee's time more closely than usual as was the case here. *10 In addition, the Commission finds quite a few affidavits which contradict the facts as set out in appellant's affidavit concerning exactly what happened on May 23, 1978, and subsequently. In many instances, individuals cited by appellant denied significant details in the description of what happened in this case. Specifically, it appears that no university policemen or FBI agent was present at the door at the time of the incident; that appellant developed an ulcer in 1967, well before the ADO arrived in the laboratory; that the Administrative Technician did not bring resignation forms to appellant; and that appellant was not told that the contamination was caused by a heat resistant bacterium. As a consequence of all the circumstances described above, the Commission finds that appellant has not established that he was constructively discharged on June 27, 1978. As stated in the preceding paragraph, however, appellant has established a prima facie case of discrimination based on national origin and religion. Once the appellant has established a prime facie case of discrimination, the agency must articulate a legitimate, nondiscriminatory reason for its actions in this case. Here the agency explained that the religious tapes and literature were kept in the ADO's office for his private use during his lunch period. In addition, the record established that appellant initiated any discussions the ADO may have had with him by asking questions about the Mormon faith. At the hearing on the complaint, appellant testified that the ADO never invited him to join the Mormon Church and did not express any feelings or attitude toward the Catholic religion. There is no evidence in the record that the ADO sent the missionaries to the home of appellant. Moreover, there is a contradiction in the affidavits of appellant and his wife as to the length of time involved in these evening visits. From the affidavit of appellant's wife, it appears she felt no compulsion to continue the visits after a week or a week and a half, while appellant stated that a much longer time was involved. With regard to the derogatory comments about Mexican-Americans, and the comment that appellant's hairstyle made him appear to be a black man, the agency pointed out that the ADO denied making such inflammatory statements. In addition, the agency noted that there was nothing to corroborate the allegations of the appellant. Here the Commission is confronted with a question of credibility. The Commission would normally defer in such circumstances to the impressions of the Complaints Examiner. However, after reading the transcript and all other parts of the complaint file, the Commission is inclined to doubt appellant's credibility due to the numerous contradictions in his affidavit and the affidavits of those individuals other than the ADO. An Examiner's duty at a hearing is to determine whether a witness' testimony is free of self-contradictions, consistent with other reliable credible evidence in the record, and not given in response to leading questions. The Examiner's recommended decision demonstrated that she based her findings of credibility solely on her impressions during the hearing. *11 At page 12 of her recommended decision, the Examiner stated: The Examiner must note here that during the testimony of Complainant and (his wife), she was able to glean that they took the proceeding very seriously, responded to questions posed unevasively, and did not otherwise exhibit any characteristics which would suggest that their testimony was unworthy of belief. Then later at page 17, she noted: The Agency's evidence, in response to the charge of the making of derogatory ethnic remarks, consists simply of a flippant denial of such by the ADO. Under the totality of the facts as presented herein, a bald denial is simply insufficient to rebut the inference of discrimination created by Complainant's prima facie showing. There is nothing in the Examiner's analysis to indicate that she actually considered the 'totality of the facts.' The Commission finds that the agency has offered much more than a 'flippant denial' from the ADO to support its position. Considerable evidence existed in the record to suggest that appellant's veracity was doubtful. In particular, the Commission finds the affidavits of appellant's family members persuasive. With regard to the harassment he allegedly suffered concerning his conditions of employment (i.e., not being allowed to run personal errands during working hours, longer hours of work, etc.), the agency explained that no disparate treatment occurred. A factor which might explain the extended hours is appellant's testimony that he sometimes skipped lunch because he would be in the middle of an experiment in the laboratory. The bulk of his co-workers' duties was outside that setting. However, appellant was not required to work overtime or longer hours and there was no credible corroborating evidence in the record to support his allegation. The only thing in the record was the opinion of his wife that he appeared to be working longer hours after the ADO's arrival. The ADO indicated that occasionally appellant had come in to water plants if the ADO had to be away for an extended weekend. But it appeared appellant was not required to do so. The ADO also noted that appellant preferred to use his own car when it was necessary for him to drive on errands connected with his work. The Commission finds that the agency has provided plausible nondiscriminatory reasons for its actions in this case. Because the agency has provided legitimate reasons for its action, appellant must next show that those reasons were a pretext for discrimination based on national origin and religion. To establish pretext, appellant implied that the ADO suspected him of sabotaging the tissue culture because of his national origin and religion, rather than consider the true culprit: a heat-resistant bacterium. The Commission finds that the record failed to establish definitively the cause of the contamination. The agency established through affidavits from qualified individuals that no known heat-resistant bacterium could survive the sterilization process. This argument did not demonstrate that the agency's reason was pretextual. *12 Appellant also tried to show that his offense, (i.e., being AWOL to go home) was less serious than the offense of his co-worker (being AWOL to get a drink) , and consequently, his punishment was disproportionate. This does not demonstrate reprisal or cast doubts on the difference in the agency's treatment of both men. The difference in treatment was based on the change in the co-worker's behavior whereas appellant continued to be AWOL after he was placed on restricted leave. Appellant has not shown that any of the reasons advanced by the agency was a pretext for discrimination. As a consequence, he has failed to establish discrimination by a preponderance of the evidence, and cannot prevail in this case. CONCLUSION Based on a review of the record in this case, it is the decision of the Equal Employment Opportunity Commission to affirm the final agency decision. NOTICE OF RIGHT TO FILE A CIVIL ACTION Pursuant to 29 C.F.R. 1613.282, the appellant is hereby notified that this decision is final and that appellant has the right to file a civil action on the Title VII claim in the appropriate United States District Court within thirty (30) days of the date of receipt of this decision. APPOINTMENT OF COUNSEL If appellant elects to file a civil action and does not have or is unable to obtain the services of an attorney to act as his or her counsel, appellant may request that the Court appoint an attorney for purposes of the civil action. The Court in its discretion may appoint an attorney to represent appellant and authorize commencement of the action without the payment of fees, costs, or security. A request for the appointment of counsel must be filed with the Court within the time limit for filing a civil action. NOTICE OF RIGHT TO REQUEST REOPENING The appellant and the agency are hereby notified that the Commissioners may, in their discretion, reopen and reconsider any previous decision when the party requesting reopening submits written argument or evidence which tends to establish that: 1. New and material evidence is available that was not readily available when the previous decision was issued; 2. The previous decision involves an erroneous interpretation of law or regulations or misapplication of established policy; or 3. The previous decision is of precedential nature involving a new or unreviewed policy consideration that may have effects beyond the actual case at hand or is otherwise of such an exceptional nature as to merit the personal attention of the Commissioners. This notice is in accord with 29 C.F.R. 1613.235. As provided therein, agency requests to reopen must be filed within 30 days from the date of receipt of decision. FOR THE COMMISSION Dolores L. Rozzi, Director Office of Review and Appeals Footnotes 1 Appellant initiated contact with an equal employment opportunity counselor well past the thirty days prescribed in EEOC Regulations. Apparently, the agency waived the time limits and considered the merits of the case. 2 Appellant claimed that he had made efforts to discover the source of the contamination. He claimed that an Associate Professor of Biology told him a heat resistant bacterium probably had caused the contamination. 3 Commission Decision No. 84-1, 33 FEP Cases 1887 (November 28, 1983).