Garland Allen, Complainant,v.Bruce Babbitt, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionMar 17, 2000
01970456 (E.E.O.C. Mar. 17, 2000)

01970456

03-17-2000

Garland Allen, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.


Garland Allen v. Department of the Interior

01970456

March 17, 2000

Garland Allen, )

Complainant, )

) Appeal No. 01970456

v. ) Agency Nos. FNP-93-069R

) FNP-93-116

Bruce Babbitt, ) FNP-93-006

Secretary, ) FNP-93-045

Department of the Interior, )

Agency. )

____________________________________)

DECISION

Complainant timely filed an appeal with this Commission from a final

agency decision ("FAD") concerning his complaints of unlawful employment

discrimination on the bases of race (American Indian and Black), age

(date of birth: September 30, 1936), physical disability (injury to

shoulder and arm), and reprisal for prior EEO activity in violation

of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �

2000e et seq.; the Age Discrimination in Employment Act of 1967 (ADEA),

as amended, 29 U.S.C. � 621 et seq.; and the Rehabilitation Act of 1973,

as amended, 29 U.S.C. � 791, et seq.<1> The appeal is accepted pursuant

to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. �

1614.405).<2> For the following reasons, the FAD is AFFIRMED.

Complainant alleged that he was discriminated against when: (a) his

performance appraisal for 1992 rated him at Level III (Meets Minimum

Requirements); (b) management officials rejected his request to make

his 1993 performance standards objective, clear and measurable; (c)

he was assigned the duties of another employee since July 1993, when

he was directed to pick up supplies; (d) he had to use all of his leave

(560 hours) before he was placed on workers' compensation; (e) coworkers

subjected him to harassment, including harassing telephone calls; (f) he

was given a Letter of Warning ("LOW") by the Custodial Foreman ("Foreman")

without having the opportunity to have a representative present; (g)

his leave application submitted on November 2, 1993, was not approved;

(h) he was denied supervisory training for which he applied; (i) he was

issued a written warning by the Foreman for refusal to pick up supplies;

(j) the Foreman did not provide him with adequate notice of his right

to representation for a meeting in September 1993; and (k) management

officials failed to prevent acts of petty harassment by his coworkers,

who have anonymously placed items at his park mail stop.

The record reveals that during the relevant time, complainant was employed

as a Maintenance Worker, WG-5. Complainant timely sought counseling and

filed his four formal complaints on various dates between April 15, and

October 7, 1993. The agency accepted the complaints for investigation

and, after complainant failed to request a hearing, issued a FAD finding

no discrimination.

For purposes of analysis, the agency assumed that complainant was

a qualified individual with a disability. The record reflects that

complainant was placed on light duty in July 1993, and after a second

surgical procedure on his arm, was detailed into an office position

for 120 days, after which he was placed on workers' compensation.

(Complainant remained on workers' compensation from that time through

the issuance of the FAD on September 6, 1996.)

Regarding claim (a), the record reflected that complainant received a

Fully Satisfactory rating on his 1992 performance rating and contended

that he merited a similar or higher rating for 1993, but was instead rated

"Meets Minimum Requirements." The agency found that the Foreman, who had

assumed the position during 1993, rated all but one of his subordinates

lower than the prior supervisor. The Foreman articulated legitimate,

nondiscriminatory reasons for each of his ratings on the sub-elements

of complainant's appraisal.

As to claim (b), the agency maintained that the content of performance

standards and elements were a non-negotiable management right.

The agency noted that it nonetheless rewrote the performance standards

after complainant complained, and complainant did not take advantage of

an offer to have him participate in drafting the revised standards.

With respect to claim (c), complainant maintained that supplies he was

directed to pick up were used by a coworker in a separate building and,

thus, complainant should not have had to get them. He also noted that

this task was not included in his position description. Complainant

further complained that the supplies included heavy cartons which he

should not have to lift, as provided in his work restrictions. Although

complainant could have broken down the cartons, he maintained that he

did not have time to do this and his regular duties. Agency officials

maintained that the picking up of these supplies was not specified in

complainant's position description because only the major duties of the

job were set forth. Complainant's supervisors contended that he was the

logical person to pick up these supplies as he had other supplies to get

from that location. The agency contended that complainant was authorized

to break down the cartons and, thus, assuming complainant was disabled,

this duty would not constitute a failure to accommodate the disability.<3>

The Foreman maintained that he was justified in issuing the LOW noted in

claim (i) when complainant refused to pick up the supplies. The agency

maintained that employees were entitled to have a representative present,

if requested, during an investigatory meeting if the employee expects a

disciplinary action from the meeting. However, the agency maintained that

neither the meeting in which complainant was given the LOW nor the meeting

in September 1993, were "investigatory meetings." See claims (f) and (j).

Complainant acknowledged that other employees were given similar LOWs

or were present at similar meetings without being given representation.

As to claim (d) (complainant had to use all of his leave (560 hours)

before he was placed on workers' compensation), a memorandum from the

agency's Personnel Officer advised complainant that under the regulations

of the Office of Workers' Compensation Programs ("OWCP"), an employee has

the choice taking leave without pay while awaiting OWCP's determination

regarding payment of the claim or using annual or sick leave until

the determination is made. The memorandum noted that once payment was

received, the employee has the right to "buy back" the leave used during

this period. While complainant originally contended that he had used 560

hours of leave, the Payment Coordinator worked with him and provided him

with evidence that he had a total of 302 hours of leave, all of which

complainant "bought back" after OWCP approved his claim. An employee

outside of complainant's protected groups stated that he too had to use

annual and sick leave while awaiting a determination on his OWCP claim.

In claim (e), complainant contended that his coworkers subjected him to

harassment, including harassing telephone calls. The record indicates

that complainant had particular problems with one coworker, who was

complainant's former next door neighbor. While they were neighbors,

complainant contended that the coworker precipitated problems through

various actions, such as parking his car in a manner which interfered

with complainant watering his lawn. This coworker admitted making at

least one telephone call to annoy complainant but denied complainant's

claim that management encouraged him to do so. As for claim (k)

(management officials failed to prevent acts of petty harassment by his

coworkers, who have anonymously placed items at his park mail stop),

agency officials advised complainant not to touch the articles so that

they could have finger prints taken from them. In addition, employees

were advised at a meeting and in two written notices that such actions

would be grounds for immediate termination

Complainant submitted a leave request on which he wrote certain comments

alleging harassment and discrimination by his coworkers. Complainant's

supervisors instructed him to submit a new leave slip without such

comments. Although claim (g) complains that the agency did not approve

his leave request, complainant acknowledged that he submitted a new slip

after discussing the matter and agreeing that this was not the proper

forum to raise such complaints. Complainant stated that the request was

then approved and further stated that he did not recall his supervisors

ever denying him requested leave. Although complainant's records do not

reflect that he took leave on the date in question, complainant stated

that he may have changed his mind about going to the doctor on that date.

With respect to complainant's requests for supervisory training (claim

(h)), agency officials stated that applicants were required to submit

applications containing answers to certain questions regarding the need

for training. Agency officials maintained that complainant's answers

were inappropriate because they contained remarks addressing his claims of

discrimination and otherwise poorly addressed the questions. While none

of the eleven selected applicants had prior EEO activity or disabilities,

three were American Indians and three were older than complainant.

Other persons outside complainant's protected classes were also not

selected for training.

The FAD extensively analyzed each of complainant's claims and determined

that he either failed to establish a prima facie case of discrimination

(see McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Hochstadt

v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318

(D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976); Loeb v. Textron, Inc.,

600 F. 2d 1003 (1st Cir. 1973); Prewitt v. United States Postal Service,

662 F.2d 292 (5th Cir. 1981)) or failed to establish that the legitimate,

nondiscriminatory reasons articulated by the agency for its actions

were a pretext for discrimination. See Texas Dep't of Community Affairs

v. Burdine, 450 U.S. 248, 253 (1981); United States Postal Service Board

of Governors v. Aikens, 460 U.S. 711 (1983).

Complainant timely appeals and, in the course of approximately six

different submissions, presents a number of arguments, including that:

officials abuse their authority, the EEO Investigator placed things

in the record that he knew would hurt complainant's case, he was not

told to do a good job on his training applications, he was the only

person required to pick up another employee's supplies, his performance

merited a higher rating, his performance standards were inadequate,

various agency officials are racists, he wanted representation during

the meetings because the officials were attempting to provoke a fight,

officials threatened to deny his leave requests and that he deserves to

be compensated for his pain and suffering. Complainant also challenges

various decisions by the Department of Labor in connection with his OWCP

claim and states that officials monitor his house to catch him working

while receiving compensation.

However, after a thorough review of the record, we concur with the

findings in the FAD that complainant failed to establish that he was

subjected to the discrimination alleged. Insofar as complainant contends

that the incidents of which he complained constituted harassment based

upon his membership in protected classes, the Commission finds that

since he failed to refute the legitimate, nondiscriminatory reasons

proffered by the agency for its actions, he also failed to establish

that such actions were taken on the basis of his membership in the

protected classes. Accordingly, complainant failed to establish that

he was subjected to prohibited harassment. See Wolf v. United States

Postal Service, EEOC Appeal No. 01961559 (July 23, 1998). Accordingly,

it is the decision of the Commission to AFFIRM the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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 (S1199)

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:

March 17, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

1 On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.

2 The Rehabilitation Act was amended in 1992 to apply the standards in

the Americans with Disabilities Act (ADA) to complaints of discrimination

by federal employees or applicants for employment. Since that time,

the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints

of disability discrimination. These regulations can be found on EEOC's

website: WWW.EEOC.GOV.

3 Insofar as complainant contended that he should have been placed in a

supervisory position, the Commission notes that his prior EEO complaints

challenged his nonselection for supervisor positions and that although

employers are required to reasonably accommodate a qualified individual

with a disability in a position at or below their current grade level,

promotion of the individual is not required. The record does not

establish that complainant's current position required him to perform

heavy lifting or use his arms above his head.