Lamont T. Rowan v. Department of Veterans Affairs 01A45684 December 16, 2005 . Lamont T. Rowan, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency. Appeal No. 01A45684 Agency No. 200L-0603-2003103403 Hearing No. 240-2004-0074X DECISION Complainant filed a timely appeal from the final agency decision (FAD) dated August 12, 2004, which the Commission accepts pursuant to 29 C.F.R. § 1614.405. On appeal, complainant requests that the Commission reject the agency's finding that the agency did not discriminate against complainant on the bases of race, sex and in reprisal for prior EEO activity. Complainant also requests that the Commission make an award of compensatory damages. For the following reasons, the Commission REVERSES the agency's FAD finding no discrimination, in part. Complainant, a WG-5703-6, Motor Vehicle Operator employed at the agency's Medical Center in Louisville, Kentucky, filed a formal EEO complaint with the agency on August 19, 2003, alleging that the agency discriminated against him on the bases of race (African-American), sex (male), and in reprisal for prior EEO activity when: (1) on June 23 and 24, 2003, the Chief of Engineering Service (C1: Caucasian male, no known prior EEO activity) told his supervisor (S1: Caucasian male, prior EEO activity) to take him off of his driving duties and pull weeds; on June 30, 2003, S1 had him pull weeds again; on July 1, 2003, C1 told S1 to have him pull weeds on the grounds of the facility; on July 18, 2003, C1 told S1 to pull him off driving for the agency's Shively Clinic, contract out his driving duties to run the clinic, and have him pull weeds on the grounds of the facility; and on August 18, 2003, C1 told S1 to pull him off driving duties and to have him pull weeds on the grounds of the facility. At the conclusion of the investigation, complainant was provided a copy of the investigative report and requested a hearing before an AJ. In a decision dated June 15, 2004, the AJ dismissed the complaint for failure to prosecute and remanded the case to the agency for issuance of a final agency decision on the investigative record. On August 12, 2004, the agency issued a decision finding no discrimination. The agency found that there was a legitimate, nondiscriminatory reason for its actions. In particular, the agency stated that, because the Medical Center only had two workers specifically assigned to grounds keeping, they needed additional assistance. On appeal, complainant raises no new contentions. The agency requests that we affirm its FAD. 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(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. In the case at bar, the record reflects that, in addition to complainant, C1 pulled another worker (CW1: Caucasian) from his driving duties and ordered him to pull weeds. This employee was later excused from weed pulling duty based on his allergic reaction to insect stings. Because C1 required two workers to pull weeds, with no apparent regard of race, the Commission finds that complainant failed to prove race discrimination in this matter. The Commission also concludes that complainant did not establish that the agency retaliated against him for engaging in prior protected activity. In particular, complainant testified that his requirement to pull weeds preceded his participation in protected activity. Under these circumstances, we find that complainant has not shown that he was subjected to retaliatory motive. The Commission does find, however, that complainant established a prima facie case of sex discrimination. Specifically, complainant was made to pull weeds on at least six different occasions while his co-worker Wage Grade Motor Vehicle Operator (CW1: female) was never made to pull weeds. The burden of production now shifts to the agency to rebut the presumption of discrimination by articulating a legitimate, nondiscriminatory reason for making complainant pull weeds. While the agency's burden of production is not onerous, it must nevertheless provide a specific, clear, and individualized explanation for the treatment accorded complainant. Complainant is entitled to some rationale for being treated differently than his co-workers that provides him with an opportunity to attempt to satisfy his ultimate burden of proving that the agency's explanation was a pretext for discriminatory animus. Id. In its attempt to articulate a legitimate, nondiscriminatory reason for having complainant pull weeds, the agency states that its motor vehicle operators routinely finished their routes early and thus, were available to assist in maintaining the grounds. We are not persuaded. First, the record establishes that while complainant was not the only Wage Grade 6, Motor Vehicle Operator, he was the only one made to pull weeds. In fact, the record is replete with testimony from management and co-workers who testified that CW1 was never made to pull weeds. The Commission notes that the agency provides no explanation as to why this was the case. The Commission also notes that the agency provides no explanation as to why, if assistance was needed in grounds keeping, no other Wage Grade 6, Motor Vehicle Operator was made to pull weeds. The Commission further notes that on at least three occasions, even while performing his primary duties, C1 instructed S1 to pull complainant, told him to pull weeds and to assign his duties to an outside contractor. The record also establishes that, during the time complainant was being pulled from his primary duties as a Motor Vehicle Operator, the agency posted a Vacancy Announcement recruiting a WG-5703-6, Motor Vehicle Operator. Under these circumstances, we find that the agency's articulated reason was a mere pretext for unlawful employment discrimination. After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to REVERSE the agency's final order, because a preponderance of the record evidence establishes that sex discrimination occurred. The Commission directs the agency to take corrective action in accordance with this decision and the Order below. ORDER (C0900) The agency is ordered to take the following remedial action: Within fifteen (15) calendar days of the date this decision becomes final, the agency shall give complainant a notice of his right to submit objective evidence (pursuant to the guidance given in Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) in support of his claim for compensatory damages within forty-five (45) calendar days of the date complainant receives the agency's notice. The agency shall complete the investigation on the claim for compensatory damages within forty-five (45) calendar days of the date the agency receives complainant's claim for compensatory damages. Thereafter, the agency shall process the claim in accordance with 29 C.F.R. § 1614.108(f). Within thirty (30) calendar days from the date this decision becomes final, the agency shall restore any annual and sick leave to complainant's account that was taken from June 23, 2003 through October 21, 2003 in order to avoid or recover from the discriminatory imposition of weed pulling duties.<1> Within one hundred and twenty (120) calendar days of the date this decision becomes final, the agency shall provide eight (8) hours of EEO training for all responsible management officials to sensitize them to the issue of discrimination in the workplace, and to inform them of their responsibilities as federal management officials to adhere to EEO laws. The agency shall consider taking appropriate disciplinary action against the responsible management officials. The Commission does not consider training to be disciplinary action. The agency shall report its decision to the compliance officer. If the agency decides to take disciplinary action, it shall identify the action taken. If the agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the agency's employ, the agency shall furnish documentation of their departure date(s). The agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. POSTING ORDER (G0900) The agency is ordered to post at its Medical Center in Louisville, Kentucky, copies of the attached notice. Copies of the notice, after being signed by the agency's duly authorized representative, shall be posted by the agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0900) If complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the agency. The attorney shall submit a verified statement of fees to the agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501) Compliance with the Commission's corrective action is mandatory. The agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. The agency's report must contain supporting documentation, and the agency must send a copy of all submissions to the complainant. If the agency does not comply with the Commission's order, the complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. 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 (R0900) This is a decision requiring the agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the agency, or filed your appeal with the Commission. 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. 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 December 16, 2005 __________________ Date 1Complainant asserted that he used much of his annual and sick leave during this time period as a result of the emotional stress, humiliation, and sleepless nights engendered by the discriminatory change in his job duties. Restoration of leave taken to avoid or recover from discriminatory conduct is an aspect of equitable relief. See Marr v. Department of the Air Force, EEOC Petition No. 04990013 (April 15, 2000); Merriell v. Department of Transportation, EEOC Request No. 05890596 (August 10, 1989).