03990058
08-31-2000
Gerald L. Godbout, Jr. v. Department of Agriculture 03990058 August 31, 2000 . Gerald L. Godbout, Jr., Petitioner, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Gerald L. Godbout, Jr. v. Department of Agriculture
03990058
August 31, 2000
.
Gerald L. Godbout, Jr.,
Petitioner,
v.
Daniel R. Glickman,
Secretary,
Department of Agriculture,
Agency.
Petition No. 03990058
MSPB Nos. PH-0752-96-0115-I-2 & PH-0752-96-0256-I-1
DECISION
On September 8, 1998, the petitioner, by and through his attorney, timely
filed a petition with the Equal Employment Opportunity Commission (EEOC)
for review of the final decision of the Merit Systems Protection Board
(MSPB) dated August 14, 1998 concerning an allegation of discrimination
in violation of � 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791 et seq., Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C � 2000e et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1>
The petition is governed by 29 C.F.R. � 1614.303 et seq.<2>
ISSUES PRESENTED
Whether the petitioner: (1) was discriminated against on the basis
of disability (stress disorder),<3> sex (male), age (born 6-24-43) and
reprisal (EEO activity) when he was removed in March 1996, and (2) is
entitled to administrative leave for time pursuing his EEO administrative
claims.
BACKGROUND
The petitioner was formerly employed with the agency's Grain Inspection,
Packers and Stockyards Administration in Lancaster, Pennsylvania as an
Auditor, GS-12.
He stopped working on June 20, 1995. He contended he would have returned
on October 15, 1995 if the agency reasonably accommodated his disability.
The petitioner did not return. He termed this enforced leave.
The petitioner was removed in March 1996 for inability to report to duty
and perform the full range of his position. He appealed the removal
to the MSPB in March 1996. Following a hearing, the MSPB issued an
initial decision in January 1998 sustaining the removal and finding
no discrimination. In August 1998 the MSPB denied the petitioner's
petition for review of the initial decision.
On petition, the petitioner argues that he was discriminated against
on the bases of disability, sex, age and reprisal when he was removed.
He argues that he was harassed, and is entitled to damages for this.
He argued below that he was unable to report to work because of
harassment. The petitioner also argues, as he did before the MSPB, that
he is entitled to administrative leave for the time he spent prosecuting
his EEO administrative claims. He disputes evidentiary rulings by the
MSPB concerning discovery and the hearing, arguing relevant evidence
was excluded.
ANALYSIS AND FINDINGS
The Commission must determine whether the decision of the MSPB with
respect to the allegation of discrimination based on disability, sex,
age and reprisal regarding the removal constitutes an incorrect
interpretation of any applicable law, rule, regulation or policy
directive, or is not supported by the evidence in the record as a whole.
29 C.F.R. � 1614.305(c).
Age, Sex and Reprisal Claim
The petitioner argued that he was unable to report to work due to
discriminatory harassment, which led to his removal. After discussing
the incidents that gave rise to the petitioner's harassment claim, the
MSPB concluded that the petitioner was not discriminatorily removed.
The agency explained that it removed the petitioner for inability to
report to duty and perform the full range of his position. Since the
agency articulated a legitimate, nondiscriminatory reason for its
action, we may proceed directly to whether the petitioner demonstrated
by a preponderance of the evidence that the reason was merely a pretext
to hide discrimination based on age, sex and reprisal. United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983).
This will include an examination of whether the petitioner was prevented
from returning to work due to a discriminatory environment.
On petition, the petitioner argues that because his supervisor falsely
accused him on June 19, 1995 of engaging in sexual harassment, the
petitioner's stress condition was aggravated, which stopped him from
coming to work after June 20, 1995. But the record shows that the
supervisor did not accuse the petitioner of sexual harassment. Rather,
the petitioner was scheduled to attend training entitled Preventing
Sexual Harassment in the Workplace. In response to the petitioner's
question on June 19, 1995 asking why he was scheduled, the supervisor
explained it stemmed from a recommendation by a prior investigation, and
others were also scheduled. The petitioner asked if he was specifically
named to take the training, and the supervisor replied he could not
recall, but believed so. The next day the supervisor informed the
petitioner that he reviewed the investigative report and the petitioner
was not specifically named to take the class. Scheduling the petitioner
for sexual harassment training does not amount to an accusation of
sexual harassment. While the petitioner has identified some improper
remarks directed at him in the workplace, we find that he has not shown
that a reasonable person in his position would have found the working
conditions intolerable so that he would be unable to report to work.
We agree with the MSPB's finding that the agency removed the petitioner
for the reason charged, and not discriminatory reasons.
We also agree with the finding of the MSPB that the petitioner's actions
added to the irascible office atmosphere which he claimed caused him
distress. For example, the petitioner's supervisor published the agency
break policy in early June 1994. In August 1994 a colleague of the
petitioner who was a supervisory marketing specialist stated that since
the publication, the petitioner spent most of his time in his doorway
staring at his watch and documenting the whereabout of co-workers.
The colleague testified that the petitioner would ask co-workers if
their telephone call was personal. Further, the petitioner told two
co-workers who he suspected complained about smokers taking too many
breaks that since they made his life miserable, he would make their
lives miserable. The complaints led in part to the publication of the
break policy. The colleague stated that during this time, the petitioner
tried to provoke arguments with co-workers, would yell at people, and
was hostile to co-workers. He testified the above actions made people
very uncomfortable and it was hard to get work done. The colleague's
characterization was corroborated by two other co-workers.
The petitioner testified that he only tracked the breaks of employees
for five or six days to gather evidence for his EEO claim regarding
breaks. But a log by the petitioner which he later submitted to the
MSPB showed he tracked co-workers for over a month. The log timed
personal conversations among co-workers, lengths of breaks, and so forth.
Statements by co-workers indicate his tracking activity went on for at
least two months. The nature of the petitioner's monitoring, when taken
together with his outbursts, indicates his behavior was largely designed
to inappropriately intimidate people in the office and exact revenge,
and helped create an intimidating atmosphere. He also engaged in other
intimidating behavior near the time he stopped working in 1995.
The colleague and another co-worker wrote statements describing mean
spirited behavior by the petitioner at a meeting on May 31, 1995.
He openly showed interest only in items concerning him, and made it
clear he believed other areas were a waste of his time. He got upset
about a co-worker asking appropriate questions, and acted in an agitated
and uncooperative manner.
The petitioner has not established that he was discriminated against on
the bases of age, sex, or reprisal when he was removed.
Disability Claim
The petitioner testified that he was hospitalized for stress for four to
six weeks in 1966, and as a result received a service connected disability
rating of 10%. In 1972 he wrote on a form that the hospitalization was
for anxiety syndrome.
The petitioner also testified that he was hospitalized for stress for a
day or two in January 1993. While the record contains contemporaneous
medical documentation, none refers to this hospitalization. But the
petitioner's wife appeared to refer to the hospitalization in a comment
to one of the above colleague. The petitioner's supervisor credibly
suggested he was not aware of such a hospitalization H.T. 178.
The petitioner did not work in January and February 1993 for three to four
weeks. He was diagnosed by an evaluating psychiatrist in January 1993
with probable major depression, characterized by symptoms of decreased
concentration and focusing, poor sleep, decreased energy, some near crying
spells [for about a week, apparently] and alcohol abuse and dependence.
The evidence does not show that the petitioner's superiors saw this
evaluation.
The petitioner was referred by his family physician to a psychologist in
June 1995. The psychologist diagnosed the petitioner in July 1995 with
adjustment disorder with mixed anxiety and depressed mood; occupational
problems: discord with boss and co-workers. After observing the
petitioner's report that he had much less palpitations, a cardiologist
opined in July 1995 that perhaps they were related to work stress.
The cardiologist opined that the petitioner would not feel better about
breathing unless he gave up smoking two packs of cigarettes a day.
The petitioner was hospitalized from August 21 to 25, 1995. The discharge
summary contained the following relevant information. The petitioner
had major depressive disorder, recurrent, with anxiety features; and
alcohol dependence, early partial remission. He reported depression
over the last 2� years, with greater severity over the prior two months.
He reported that recently his concentration and energy levels were
diminished, described lack of pleasure, but denied problems with sleep,
appetite, or feelings of hopelessness. He had passive suicidal ideation,
which ceased by discharge, and his affect was appropriate at discharge.
The petitioner took the anti-depressant Prozac, which was ineffective
if he continued to consume alcohol. His anxiety and depression were
aggravated by alcohol intake. He reported that he drank eight beers one
day prior to his admission, and drank about three beers daily for the
last 12 to 15 years, with a period of somewhat increased drinking for 1�
years about 10 years ago. The record does not show that the petitioner's
superiors received the discharge summary or were aware of its contents.
The supervisor's testimony suggested he was unaware of the petitioner's
alcohol problem. H.T. 178.
The petitioner's psychologist wrote a letter for the agency in August
1995 that repeated his earlier diagnosis. The psychologist advised
that the petitioner's distress was caused by chronic discord with
his boss and co-workers, which were not inherent in the job duties.
The psychologist wrote that the petitioner could perform the tasks of
his job, and accommodations with therapeutic value included a change
in work location/supervisor, employee initiated breaks [as needed],
and medical leave for therapy. The petitioner's psychologist stated
in a deposition in March 1996 that he saw the petitioner 15 times since
June 1995, when he started working with him. In July 1996 the petitioner
was seeing the psychologist on an as needed basis.
In September 1995, the agency asked the petitioner to clarify the
requested accommodation of employee initiated breaks. The petitioner's
attorney replied that it meant the employee initiates the break, and their
frequency and duration were impossible to predict. The psychologist
indicated in his deposition that the idea was that when the petitioner
was under stress, he would simply absent himself momentarily to gain
composure, and he did not know how frequent this would be.
The petitioner testified that his stress disorder was strictly caused
by harassment at work, and if his supervisor stopped it, he could
have returned. The petitioner testified that symptoms of the stress
included severe headaches, stomach problems, shaking, difficulty making
decisions, and loss of interest. The petitioner's psychologist gave a
sworn deposition. The psychologist stated that when he first saw the
petitioner, he was sleeping excessively and was on Prozac for depression
and Xanax for anxiety. The psychologist stated that at this time the
petitioner had difficulty performing routine household tasks because he
could not make decisions and was confused, but the level of impairment
in daily living activities was mild. The psychologist testified that
the petitioner reported his anxiety subsided after the hospitalization.
His testimony indicated that by at least the beginning of October 1995,
the petitioner could work elsewhere. In a letter written to the Office of
Workers' Compensation Programs in November 1995, the psychologist stated
that the petitioner's anxiety and depression were caused by his specific
work environment. It recommended against a return to the petitioner's
current work environment, but indicated the petitioner could return to
work gradually if stressors were reduced or eliminated.
In his January 1996 response to the proposed removal, the petitioner,
through his attorney, stated he could return to work if the hostile work
environment created by his supervisor was eliminated. The petitioner
stated that he could return to work immediately if his supervisor
was transferred. The petitioner also stated he could work elsewhere,
suggesting a transfer.
As a threshold matter, one bringing a claim of discrimination on
the basis of disability must show that he is an individual with
a disability. Under 29 C.F.R. � 1630.2(g), the definition of an
individual with a disability is one who (1) has a physical or mental
impairment that substantially limits one or more major life activities,
(2) has a record of such an impairment or (3) is regarded as having
such an impairment. Major life activities include caring for one's self,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working. 29 C.F.R. � 1630.2(g)(i).<4> The agency argued
that the petitioner is not an individual with a disability.
We find that the petitioner is an individual with a disability with
regard to the medical condition that gives rise to his disability claim,
i.e., anxiety and depression, which he calls stress disorder. He has a
mental impairment in that at various times he was diagnosed with major
depression, and adjustment disorder with mixed anxiety and depressed mood.
The petitioner was hospitalized with anxiety and/or depression in 1966 for
four to six weeks, perhaps in January 1993 for one or two days, and in
August 1995 for four or five days. These hospitalizations evidence an
underlying mental disability that periodically gets very symptomatic.
In 1993, the petitioner's psychiatrist noted that the petitioner
experienced decreased concentration, focus and energy, poor sleep,
and near crying spells for about a week. When the petitioner first
started seeing the psychologist in June 1995, he had trouble performing
routine daily tasks because he could not make decisions and was confused.
When the petitioner was in the hospital in 1995, he reported depression
over the last 2� years which grew more severe during the summer of 1995.
At this time he had passive suicidal ideation, diminished concentration
and energy, and lack of pleasure. While the petitioner took Prozac for
depression, it was often ineffective because of alcohol consumption.
Based on the above, we find that the petitioner's mental impairments
substantially limited his major life activity of taking care of himself.
A qualified individual with a disability has a disability and
satisfies the requisite skill, experience, education and other job
related requirements of the position in question and can, with or
without reasonable accommodation, perform the essential functions of
such position. 29 C.F.R. � 1630.2(m). Even if the agency provided the
reasonable accommodations of medical leave for therapy (which it agreed to
do), and employee initiated breaks, the petitioner informed the agency
that he could not return to work unless it changed his supervisor,
the third accommodation requested. An employer is not required to
change an individual's supervisor as a form of reasonable accommodation.
EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship
Under the Americans with Disabilities Act, question 32, (March 1,
1999).<5> Accordingly, the petitioner is not a qualified individual
with a disability. We add that the event which the petitioner argues
on petition triggered him to stop working, i.e., being accused by his
supervisor that he engaged in sexual harassment, did not occur.
Procedural Matters
The petitioner argues that he is entitled to administrative leave for
all the time devoted to EEO activities under 29 C.F.R. � 1614.605(b).
The Commission has authority to remedy a violation of this regulation.
Saunders v. United States Postal Service, EEOC Request No. 05870046
(May 26, 1987).
The petitioner specifically raised the denial of official time prior to
his appeals for two meetings with his attorney in January and February
1995 totaling 3.5 hours.<6> While these meetings concerned other EEO
claims, we will address the official time matter here because it may be
the only forum left to do so. The petitioner is not entitled to official
time for the two meetings because they occurred outside his regular duty
hours. 29 C.F.R. � 1614.605(b). We further advise the petitioner that he
is not entitled to any official time for prosecuting administrative EEO
claims after he was removed because he was not employed by the agency.
Id.
This decision concurs with the finding of the MSPB which sustained
the petitioner's removal and found no discrimination. The petitioner
termed as enforced leave the period he averred he could return to work
to his removal as enforced leave, i.e., October 15, 1995 to March 1996.
He filed an appeal with the MSPB on the enforced leave matter in
December 1995. It was dismissed without prejudice in March 1996.
In April 1996 the petitioner re-filed his enforced leave appeal.
It was heard in the hearing with the removal appeal. The MSPB initial
decision dismissed the enforced leave appeal for lack of jurisdiction.
It reasoned that the petitioner was not constructively suspended.
In making this determination, the MSPB found that the agency did not
violate the Rehabilitation Act when it denied the petitioner's requested
accommodations.
On petition, the petitioner does not specifically address the MSPB's
dismissal of his enforced leave appeal. Because the MSPB dismissed
the petitioner's enforced leave appeal and did not address whether
it was discriminatory, the Commission does not have jurisdiction to
review the MSPB's decision on this matter as an independent issue.
29 C.F.R. � 1614.305(c)(2)(i). But in finding no discrimination with
regard to the removal, we addressed the petitioner's contention that he
was unable to come to work. Accordingly, the facts which give rise to
the enforced leave claim have been adjudicated against the petitioner,
and hence the enforced leave claim is administratively closed.
CONCLUSION
Based upon the above analysis, the Commission concurs with the MSPB's
finding that the petitioner was not discriminated against when he was
removed.
PETITIONERS' RIGHT TO FILE A CIVIL ACTION (W0400)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court,
based on the decision of the Merit Systems Protection Board, WITHIN
THIRTY (30) CALENDAR DAYS of 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.
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
August 31, 2000
__________________
Date
1The Commission, in correspondence, indicated previously that the petition
was filed on February 17, 1999. The petitioner submitted documentation
showing it was timely filed on September 8, 1998.
2On 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.
3The petitioner had other medical conditions. He alleged disability
discrimination only with regard to the above condition.
4The 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.
5This guidance is posted at www.eeoc.gov.
6The petitioner raised other dates, such as May 18, 1995 (Exhibit W),
but after initial denials the agency granted the petitioner's requests
for administrative leave.