0120073357
09-16-2009
Gary M. Morin, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, Agency.
Gary M. Morin,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 0120073357
Agency No. NIH-OD-05-0027
DECISION
On July 23, 2007, complainant filed an appeal with this Commission
from the June 11, 2007 agency 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. and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
Complainant alleges that the agency discriminated against him on the bases
of race (European-White), national origin (Europe), religion (Jewish),
color (white), disability (repetitive motion injury, clinical depression,
attention deficit disorder), sexual orientation, and in reprisal for
speaking out on disability issues and filing an EEO complaint in 1992,
when:
1. Starting on June 23, 2005, and continuing, complainant was asked
to "get things done" since the Disability Employment Program Manager
had failed to accomplish his goals.
2. Starting on June 23, 2005, and continuing, complainant was denied
promotional opportunities which have been tailored for other members of
the Division of Policy, Training and Evaluation in the Office of Equal
Employment Opportunity and Diversity Management's (OEODM) staff.
3. Starting on June 23, 2005, and continuing, complainant was denied
opportunities to enhance his performance and abilities.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a decision pursuant to 29 C.F.R. �
1614.110(b).
The record reveals that complainant is a Program Analyst GS-12 in the
Division of Policy, Training and Evaluation in OEODM. Complainant alleges
management is aware of his disabilities and has retaliated against him
for being a spokesman for the disabled and their issues. Complainant
decided to pursue a discrimination complaint when management allegedly
took certain actions which complainant believed were designed to
frustrate his efforts concerning disability issues within the agency's
National Institutes of Health (NIH), limit his career progression,
and deny him the opportunity for enhancement of his abilities and
performance. Complainant states in his affidavit that OEODM favors
persons of color and reinforces the paradigm that only able-bodied,
heterosexuals, Christians and persons of color know anything about EEO,
affirmative action, and diversity. Complainant also questioned in his
affidavit the amount of resources the OEODM spends on outreach directed
at persons of color as opposed to persons with disabilities, and why the
agency did not have persons with disabilities in leadership positions.
He also stated that the agency's and NIH's EEO office was owned by and
operated for persons of color; i.e., African-Americans and Hispanics.
In its decision finding no discrimination, the agency concluded that,
regarding claim 1, it had articulated legitimate, nondiscriminatory
reasons for its action. The agency noted that complainant's first and
second level supervisors stated it was complainant's responsibility to
"get things done" because he had requested the assignment in question
and the work was part of his assigned functions. The agency explained
further that complainant had requested to be active in the area of
disability issues.
Regarding claim 2, the agency noted that complainant did not claim
that he had applied for any announced vacancies and that officials in
complainant's management chain stated he never applied for any of the
positions for which he claims promotional opportunities were denied.
The agency also found no record of complainant's application for any
opportunities which were available within his organization. The agency
noted further that management had explored the possibility of effecting
an accretion of duties promotion for complainant, but that upon reviewing
the duties which complainant was performing, a classification expert
determined the position should be graded at the GS-9 level, which was
below complainant's current grade level GS-12. The agency also noted
that when complainant's second-level supervisor decided to announce all
positions within his office, complainant chose not apply for any of the
several vacancies.
Regarding claim 3, the agency concluded that it had articulated a
legitimate, nondiscriminatory reason for its actions. In so concluding,
the agency noted that the reason for delays or non-issuance of submissions
from the complainant was because complainant's submissions required
extensive rewrites and that his work products was not usable as submitted.
The agency also noted that complainant was not performing at the GS-13
grade level that he was seeking.
Regarding all three claims, the agency concluded that complainant failed
to show that the agency's reasons for its actions were pretextual or
that the agency was motivated by discriminatory animus.
To prevail in a disparate treatment claim, complainant must satisfy
the three-part evidentiary scheme fashioned by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must
generally establish a prima facie case by demonstrating that complainant
was subjected to an adverse employment action under circumstances which
would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may
be dispensed with where the agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997).
In analyzing a disparate treatment claim under the Rehabilitation Act,
where the agency denies that its decisions were motivated by complainant's
disability and there is no direct evidence of discrimination, we apply the
McDonnell Douglas burden-shifting method of proof. See Heyman v. Queens
Village Comm. for Mental Health for Jamaica Cmty. Adolescent Program,
198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34
(D.C.Cir. 1999). Under this analysis, in order to establish a prima
facie case, complainant must demonstrate that: (1) complainant is an
"individual with a disability"; (2) complainant is "qualified" for the
position held or desired; (3) complainant was subjected to an adverse
employment action; and (4) the circumstances surrounding the adverse
action give rise to an inference of discrimination. Lawson v. CSX
Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden of production
then shifts to the agency to articulate a legitimate, non-discriminatory
reason for the adverse employment action.
To ultimately prevail, complainant must prove, by a preponderance of the
evidence, that the agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
As an initial matter, the Commission notes that to the extent that
complainant is appealing his sexual orientation claim to the Commission,
we dismiss the sexual orientation claim because sexual orientation
discrimination is not within the purview of the Commission. See Yost
v. United States Postal Service, EEOC Request No. 05970940 (October
6, 1997).
Regarding the claims of discrimination, the Commission finds that the
agency did not discriminate against complainant. Assuming without
deciding that complainant has established a prima facie case on
each basis and that he is a person with a disability, we find that
complainant has not shown by a preponderance of the evidence that the
agency was motivated by discriminatory animus in its actions or that its
articulated reasons were mere pretext to mask unlawful discrimination.
The Commission is mindful that pretext requires more than disagreement
with the agency's actions. Also, it is not enough to simply disagree
with the agency's actions. Harris v. Department of the Army, EEOC
Request No. 05950046 (March 21, 1996). Further, mere assertions are
not enough to establish pretext. Proving pretext requires that the
complainant show that discriminatory reasons more likely motivated the
agency or that the agency's proffered explanations are not credible.
Regarding claim 1, the Commission finds that the allegation does not state
a claim upon which relief can be granted. 29 C.F.R. � 1614.107(a)(1).
Moreover, even were we to accept as true that complainant was performing
additional duties outside his position description of a Program Analyst,
the evidence does not support a finding that complainant was assigned
these duties for discriminatory reasons. The OEODM Director stated in
his affidavit that because complainant raised concerns about disability
work that he felt needed attention, he had complainant detailed to
his office so complainant could work on those issues. He stated also
that because complainant had also raised concerns about its Section 508
program and, also, alleged that his supervisor was preventing him from
completing work, he believed that detailing complainant to him would
be an opportunity for complainant to help get things done. The OEODM
Director stated that he told complainant that he wanted complainant to
"get things done" because he did want things done. He also stated that
complainant's detail had nothing to do with the work performance of
the Disability Employment Manager. The OEODM stated that complainant
was not performing GS-13 grade level work as he alleged and that he was
assigned work appropriate to his grade level.
Regarding claim 2, complainant has not identified any positions for
which he applied and was not selected or promoted. The OEODM Director
stated that in the past year he had announced several grade level GS-13
vacancies in the office and the vacancies were limited to internal
candidates. He stated further that applying for the vacancies would
have been a great opportunity for complainant to be promoted but that
complainant did not apply for any of the vacancies. We find therefore
that complainant failed to establish a prima facie case. Even if
complainant had applied and pre-selection occurred, the Commission has
held that pre-selection, per se, does not establish discrimination when
it is based on qualifications of the selected individual and not on
some prohibited basis. See McAllister v. United States Postal Service,
EEOC Request No. 05931038 (July 28, 1994).
We do not find that complainant was denied opportunities to enhance
his performance and abilities as alleged in claim 3. We find that even
assuming that there were delays in returning work products to complainant
or responding to complainant, the record does not support a finding of
discriminatory animus. The record reflects that some of complainant's
written work product required revisions and that although complainant
may also have wanted his products reviewed quickly and according to
his timetables, management did not have to adhere to complainant's
timetables and was entitled, absent discrimination, to exercise managerial
prerogatives which might not been favored by complainant or met with
his approval. Complainant was obviously disappointed that his position
was not elevated to a GS-13 level. However, we find no discrimination.
An office contractor who performed an assessment for the proposed position
of a Section 508 Disability Coordinator opined that the proposed duties
were not consistent with the GS-13/14 grade level and that there remained
a question as to whether the Section 508 program warranted a full-time
position. In addition, the record indicates that complainant was also
unhappy with how the office was addressing disability in general and
that his ideas as to how the disability program should operate and
how disability issues should be addressed may not have been followed.
Here again, we find that it was appropriate for management to determine
how best to operate its programs. Management did not have to agree or
accept complainant's recommendations or suggestions.
Complainant claims that he was subjected to a hostile work environment.1
In his affidavit, he stated that he was subjected to a hostile work
environment and noted that his supervisor, the Division Director of
Policy, Planning and Evaluation (PPE), did not care about his work; did
not respect what he did; and made conflicting revisions to his work.
Complainant also stated in the same affidavit, however, that the PPE
Division Director praised his passion about his work.
He stated in his affidavit that Hispanic and Asian male employees
were allowed to use Nazi references as a joke and that in September
2005, during a lunchtime conversation about the war in Iraq, a female
employee stated that if women were ever drafted, she would claim to be a
lesbian so that she would be protected from having to join the military.
Complainant did not identify the employees or the supervisor that he
alleged who was a witness.
Also concerning the claim of a hostile work environment, complainant
stated that in November 2005, the OEODM Director asked him about a little
blue box on his desk and when he explained to the OEODM Director that it
was a Jewish National Fund tzedekah box which American Jewish children
grow up supporting, the OEODM Director's response was: "[S]o, that's why
there's so much money in Israel." Complainant stated that the statement
reflected a racist and anti-Semitic inherent belief that all Jews and
Israel are wealthy. Complainant also stated that the OEODM Director also
asked him where the state of Palestine was located on the map. The OEDM
Director stated in his affidavit that he had no idea what complainant
was talking about when complainant referred to an incident regarding
the blue box. He said complainant had a map on his wall of that area
of the world and he asked him where the state of Palestine was located.
Regarding the claim of a hostile work environment, we find that
complainant has failed to show he was subjected to such an environment.
An abusive or hostile work environment exists "when the workplace is
permeated with discriminatory intimidation, ridicule and insult that
is sufficiently severe or pervasive to alter the condition of the
victim's employment." Harris v. Forkitft Systems, Inc., 510 U.S. 17
(1993). An alteration to an employee's working conditions exists
if a tangible, discrete employment action is taken, e.g., hiring,
firing, transfer, promotion, non-selection, or the agency's actions were
sufficiently severe and/or pervasive to create a hostile work environment.
Complainant has not shown that the actions regarding the OEODM Director
or his supervisor were discriminatorily motivated. Further, considering
the nature and frequency of the alleged actions, complainant has not
established that a discriminatorily hostile work environment existed.
See Humphrey v. United States Postal Service, EEOC Appeal No. 01965238
(October 16, 1998); 29 C.F.R. � 1604.11.
The agency's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
September 16, 2009
__________________
Date
1 We note that complainant raised the issue of a hostile working
environment at the EEO counseling stage. Complainant did not specifically
raise the issue in his complaint. Therefore, it appears the issue was
abandoned. Because, however, complainant identified it as a claim in
the affidavit which he submitted to the investigator and the agency did
not address the claim in its decision, we will, under the circumstances
of this case, address the claim.
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0120073357
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013