Milan W. Allen,
Complainant,

v. 

Carlos M. Gutierrez,
Secretary,
Department of Commerce
(National Oceanic and Atmospheric Administration (NOAA)),
Agency.

Appeal No. 0120072053

Agency No. 065400020

DECISION

On March 21, 2007, complainant filed an appeal from the agency's February
8, 2007, final decision concerning his equal employment opportunity (EEO)
complaint alleging 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 deemed timely and is accepted pursuant to
29 C.F.R. § 1614.405(a).  

On January 3, 2006, complainant filed an EEO complaint claiming
discrimination based on race (African-American) and reprisal for prior
protected EEO activity when he was subjected to harassment/hostile work
environment, and the agency denied his requests for approval, i.e.,
(a) in June-July 2005, the agency denied his request for a two-year
Intergovenmental Personnel Act (IPA) assignment to manage the GLOBE
project at Texas Southern University; (b) in March 2006, the agency
denied his proposal for a NOAA Educational Mini-Grant to offset the
residential, travel, and per diem expenses of the IPA proposed in (a);
and (c) in April 2006, the agency did not approve his application to
serve as a representative to the Program Coordination Office for one year.
At the conclusion of the investigation, complainant was provided his right
to request a hearing but did not do so.  See 29 C.F.R. § 1614.108(f).
The agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b)
and concluded that complainant failed to prove that he was subjected to
discrimination as alleged.

At the time of events giving rise to this complaint, complainant worked as
a Satellite Hydrologist at the agency's National Weather Service, NOAA,
facility in Chanhassen, MN.  In 2004, complainant received an agency
fellowship to work in Washington, D.C. for ten months.  The agency
explained, through the testimony of complainant's supervisors, its
reasons for denying complainant's requests, i.e., he had been away from
his assigned duty station for ten months beginning in September 2004, at a
substantial cost to the office; he was needed to perform the duties of his
position; and the office could not provide the supporting costs of the IPA
and detail to the Program Office.  Complainant asserted that the agency's
reasons for denial of his requests were pretext for discrimination.
In his appeal submission, complainant argued that the GLOBE project was
important to NOAA, and his skills and assigned duties were not important
and not needed; in support, he presented his managers' criticism of his
performance and work product; selections from his personal log dated in
2004, and correspondence between the agency and the union dated in 2004.

Harassment Claim

As this is an appeal from a decision issued without a hearing,
pursuant to 29 C.F.R. § 1614.110(b), the agency's decision is subject
to de novo review by the Commission. 29 C.F.R. § 1614.405(a).  It is
well-settled that harassment based on an individual's protected status
is unlawful, if it is sufficiently patterned or pervasive; usually,
however, a single incident or a group of isolated incidents will not be
regarded as discriminatory harassment.  Frye v. Department of Labor,
EEOC Request No. 05950152 (February 8, 1996); Backo v. United States
Postal Service, EEOC Request No. 05960227 (June 10, 1996); see also
Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986).  In this matter,
while complainant is a member of a protected class based on his race
and has filed a prior EEO complaint, he has not shown that the agency's
actions were based on racial animus or taken in reprisal.  Further, we
find that they were not sufficiently severe or pervasive to rise to the
level of illegal harassment.  See Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997), citing Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993) (harassment is actionable if
it is sufficiently severe or pervasive to alter the conditions of the
complainant's employment).  Moreover, complainant has not shown that the
alleged 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.1  See Humphrey v. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. § 1604.11.
Although complainant's claims do not establish illicit harassment,
they are properly considered as claims of disparate treatment.

Disparate Treatment Claim
 
Generally, claims of disparate treatment, such as complainant's, are
examined under the tripartite analysis first enunciated in McDonnell
Douglas Corporation v. Green, 411 U.S. 792 (1973); Hochstadt v. Worcester
Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324
(D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976).  For complainant to
prevail, s/he must first 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; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).
Once complainant has established a prima facie case, the burden then
shifts to the agency to 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, the burden
reverts back to the complainant to demonstrate by a preponderance of
the evidence that the agency's reason(s) for its action was a pretext
for discrimination.  At all times, complainant retains the burden of
persuasion, and it is his/her obligation to show by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).  

To establish a prima facie case of reprisal discrimination, a complainant
must show that: (1) s/he engaged in a protected activity; (2) the agency
was aware of the protected activity; (3) s/he was subjected to adverse
treatment by the agency; and (4) a nexus exists between the protected
activity and the adverse treatment.  Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (December 6, 1996) (citing McDonnell Douglas
Corp. v. Green, supra); Whitmire v. Department of the Air Force, EEOC
Appeal No. 01A00340 (September 25, 2000).  For purposes of further
analysis, we assume, arguendo, and without so finding, that complainant
established a prima facie case based on race and reprisal.

Once a complainant establishes a prima facie case, the burden
of proceeding moves to the agency to articulate a legitimate,
nondiscriminatory reason for its actions.  See Texas Department of
Community Affairs v. Burdine, supra.  We note that the agency's burden,
while not onerous, must provide a specific, clear, and individualized
explanation for the treatment accorded the complainant.  Id.  In the
matter before us, we find that the agency has met its obligation to
explain to complainant its reasons for not approving his applications
for details, i.e., the agency, through its local managers, stated that
he had been away for ten months and was needed to perform his assigned
duties and that the organization could not support the costs of his
requested details.  Thus, the agency met its obligation and framed the
factual issue "with sufficient clarity so that [complainant] had a full
and fair opportunity to demonstrate pretext."  Id.

The ultimate burden of persuasion now returns to the complainant to
demonstrate by preponderant evidence that the reasons given by the agency
for its actions are pretext, or a sham or disguise for discrimination.
The complainant must show that the agency's action was more likely
than not motivated by discrimination, that is, that the action was
influenced by legally impermissible criteria, i.e., race and reprisal.
Absent a showing that the agency's articulated reason was used as a tool
to discriminate against him, complainant cannot prevail.  Complainant
argued that neither the type of work he performed nor his performance
of that work was important or essential to his managers, so that he
was not needed at the office and should have been allowed to detail.
Even if his contentions were true, complainant failed to address the costs
issue or explain how the agency would benefit from his service elsewhere.
For these reasons, we find that complainant has failed to demonstrate
that the agency's reasons, as stated above, were pretext.  Based on a
thorough review of the record and the contentions on appeal, including
those not specifically addressed herein, we find that complainant did
not prove by preponderant evidence that the agency discriminated against
him based on race or in reprisal. 

CONCLUSION

Accordingly, the agency's final decision is affirmed.

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


_____7-12-07_____________
Date
1 See Enforcement Guidance: Vicarious Liability for Unlawful Harassment
by Supervisors, EEOC Notice No. 915.002 (rev. October 17, 2002).
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0120072053




U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C.  20036

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0120072053