Mitchell v. Chao

Decision Date02 March 2005
Docket NumberNo. 5:04-CV-0011.,5:04-CV-0011.
PartiesBrian E. MITCHELL, Plaintiff, v. Elaine L. CHAO, in her official capacity as Secretary of the United States Department of Labor; John L. Haunch, in his official capacity as assistant Secretary of Labor for the Occupational Safety and Health Administration; Patricia K. Clark, in her official capacity as Regional Administrator of Region 2, of the Occupational Safety and Health Administration, Defendants,
CourtU.S. District Court — Northern District of New York

Coulter, Ventre & McCarthy L.L.P., Liverpool, NY (M. Joanne Van Dyke, of counsel), for Plaintiff.

Glenn T. Suddaby, United States Attorney for the Northern District of New York, Syracuse, NY (Paula Ryan Conan, of Counsel), for defendant.


MUNSON, Senior District Judge.

The complaint in this action, brought by a former federal employee, alleges age and gender discrimination, retaliation and constructive discharge from his federal employment. Nine claimed statutory violations are asserted:

(I) retaliation for filing discrimination claim with the CRC in violation of Title VII of 42 U.S.C. § 2000e-3, 3a;

(II) retaliation and/or age discrimination in violation of the Title VII;

(III) retaliation and/or age discrimination in violation of Age Discrimination in Employment Act (ADEA) 29 U.S.C. §§ 21, 623(d);

(IV) gender discrimination and/or retaliation in violation of Title VII, and 42 U.S.C. § 1981, § 1983, § 1985 and § 1988;

(V) gender discrimination in violation of Title VII and 42 U.S.C.1981, 1983, 1985 and 1988, and is bringing a claim for gender discrimination and/or discrimination in violation of the ADEA and Title VII 42 U.S.C. § 2000e, § 2000e-3, § 2000e-2(a)(1), § 2000-2(a)(2), § 2000-2(b);

(VI) in this count, there is a Private Action claim, and Count VI is withdrawn;

(VII) plaintiff made a claim pursuant to Section 7(b), 29 U.S.C. § 626(b) of the ADEA which incorporates by reference deprivation of rights under 16(b), 29 U.S.C. § 216(b), of the Fair Labor Standards Act of 1938, as amended 29 U.S.C. § 201, et seq.;

(VIII) violation of New York Executive Law § 290;

(IX) breach of employment contract.

Plaintiff has withdrawn counts VI, VIII and XI, and will withdraw Count V if it is repetitive. The court finds that it is, and Count V is deemed withdrawn.

The plaintiff is a white male born in 1955. He was employed by the Occupational Safety and Health Administration ("OSHA") in its Syracuse, N.Y. office from 1988 through December 1997. In June 1995, plaintiff applied for a promotion to a GS-12 salaried position. He was 40 years and three months old at the time. In August 1995, he was notified that a younger, female co-worker had been selected for the promotion. On October 1995, plaintiff filed a complaint with the New York State Civil Rights Commission ("CRC") and/or the federal Equal Employment Opportunity Commission ("EEOC") claiming that his non-selection for the open position was illegally based upon his age and sex. Subsequent to a CRC investigation of the charges, plaintiff requested an evidentiary hearing on his non-selection complaint, which was held by Administrative Law Judge ("ALJ") Felix Orraca.

On April 26, 1996, about six months after starting his non-selection EEOC case, plaintiff contacted an EEOC counselor to complain of retaliation by his supervisors for his prior EEOC activity. After completing EEOC counseling pursuant to EEOC regulations at 29 CFR 1614, plaintiff filed a second formal complaint of discrimination with the CRC on August 18, 1996.

Plaintiff disagreed with the allegations accepted for the investigation by the CRC and requested additional allegations be accepted. In a letter dated May 20, 1997, the CRC agreed to amend the issues for investigation as follows:

Whether the Occupational Safety and Health Administration discriminated against Brian Mitchell on the basis of reprisal for previous participation in the EEO process by 1) requiring him solely to forward weekly itinerary to his supervisor; 2) requiring him to report plans for working earlier or later than normal Duty Officer working hours to his supervisor one day in advance of serving as duty officer; 3) ignoring facts provided by him in response to an audit conducted by the National Office that indicated that he had performed less than one audit per month for the time period October 1, 1995 through March 31, 1996, as well as failing to consider positive comments set forth in his March 25, 1996, annual performance appraisal regarding the number of inspections; 4) scrutinizing his utilization of time on June 12, 1996; 5) denying him access to make copies of documents in his working file; 6) failing to comply with an agreement entered on June 17, 1996, by which he did not have to report to his supervisor until June 28, 1996; 7) failing to investigate the theft of his pocket calender from his briefcase on March 24, 1996, as well as the earlier theft of documents from his office; 8) creating and placing computer generated statistical data on his performance, as well as notes (dated August 9, 1995 and August 21, 1995) regarding his non-selection, in his official working and personal files; 9) reducing his annual performance rating from "highly effective" to "fully successful"; 10) requesting that he explain several activities and time spent on such activities despite the fact that he had previously supplied management with weekly itinerary and a daily report; 11) requesting that he supply a "statement of justification" for the purchase of previously approved safety shoes; and 12) requiring that he receive "Lead in Construction" training under the supervision of Paula Gonsa.

In the same letter, additional allegations were explicitly dismissed by the CRC pursuant to various provisions of the EEO regulations. Plaintiff took no appeal from these dismissals.

Plaintiff filed a third formal complaint with the CRC on February 3, 1997. The CRC accepted the following allegations for investigation in this case.

Whether OSHA discriminated against Brian Mitchell on the basis of age (41), sex (male), and/or in reprisal for previous participation in the EEOC process by 1) not allowing him to work on flex time for the period September 5, 1996 to October 2, 1996; 2) failing to afford him the option of working from home; 3) giving him four inspection assignments on the same day, and 4) giving him inspection assignments for which he had no prior training or technical expertise.

In a letter of May 12, 1997, plaintiff's attorney requested that the pending retaliation claim cases be consolidated for investigation and hearing by the EEOC. After obtaining plaintiff's agreement, through his attorney, to an October 1996 "cut-off" date for the consolidated investigations, the CRC agreed to this request.

Plaintiff resigned from his federal position in December 1997. In a letter dated February 28, 1998, plaintiff's attorney advised the CRC that he had been subjected to "ongoing harassment," which resulted in his "forced [decision] to resign his nearly ten year career with OSHA." The letter also requested a hearing before the EEOC on his consolidated complaints.

On March 13, 1998, the CRC forwarded the Investigative Reports on all three consolidated cases to the EEOC in accordance with plaintiff's request for a hearing. The CRC also informed plaintiff that his apparent claim of constructive discharge had not been accepted for investigation as the issue had not been raised to an EEOC counselor under 29 CFR 1614. Although plaintiff's attorney sought CRC guidance from the CRC concerning the filing of a complaint of constructive discharge, the CRC does not have any record of any constructive discharge having been filed by plaintiff's attorney at any time.

As constructive discharge was at no time ever an accepted issue for investigation, the agency's investigation did not include any information concerning plaintiff's wages, hours, benefits, and retirement package at this new employment, or the circumstances accompanying his securing such employment. The agency, also, did not develop any evidence to address the primary issue in a constructive discharge case of whether a reasonable employee in plaintiff's position would have found his working conditions at the Syracuse OSHA office so intolerable as to feel compelled to resign.

In accordance with plaintiff's request, hearings were held before EEOC Administrative Judge ("AJ") Felix Orraca, concluding in May 1999, on all three of his CRC cases. On June 13, 2002, AJ Orraca issued a finding of discrimination by the Agency on the basis of age and gender when he was not selected for the Industrial Hygienist position, and ordered a full complement of remedies. The AJ further found that plaintiff did not prove his claims of retaliatory discrimination. The decision referred to the fact that plaintiff "eventually ... left the employ of the Agency, however, constructive discharge was not among the issues identified for decision by the AJ during the hearing".

The CRC adopted and implemented the AJ's decision and undertook to effectuate compliance with the prescribed remedies on July 3, 2002. On August 30, 2002, plaintiff appealed the AJ's decision to the Office of Federal Operations ("OFO") of the EEOC. This appeal automatically stayed the agency's compliance with the prescribed remedies. The appeal did not challenge the finding of discrimination or the remedy awarded, nor did he indicate that the agency has not complied with the AJ's decision ordering corrective action. The appeal contended that he should have prevailed on his remaining retaliation claims only. The CRC filed a motion opposing plaintiff's appeal on September 19, 2002.

The EEOC Office of Federal Operation issued its appeal decision on September 30, 2002, upholding the CRC's adoption of the AJ's decision. After this final decision, the CRC carried out its compliance with the remedies...

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