0120053601
02-23-2007
Greg R. Bjugstad, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Greg R. Bjugstad,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01200536011
Hearing No. 370-A5-0131X
Agency No. 02-32253-010
DECISION
On April 18, 2005, complainant filed an appeal from the agency's March
21, 2005 final order 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is deemed timely and is accepted pursuant to 29 C.F.R. �
1614.405(a). For the following reasons, the Commission AFFIRMS the
agency's final order.
At the time of events giving rise to this complaint, complainant worked
as a Welder Supervisor I, in Code 920 (Structural and Fabrication Shop),
at Pearl Harbor, Hawaii. On April 4, 2002, complainant contacted an EEO
Counselor and filed a formal EEO complaint on September 11, 2002, alleging
that he was discriminated against on the bases of race (Scandinavian),
color (White), disability (regarded as disabled due to skin condition),
age (D.O.B. 08/18/52), and in reprisal for prior protected EEO activity
(arising under Title VII), when:
(1) Complainant was denied annual leave for March 29, 2002; and
(2) Complainant was denied overtime work between September 11,
2001 and September 11, 2002.2
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). Complainant timely
requested a hearing. Over complainant's objection, the AJ assigned to
the case issued a decision without a hearing in favor of the agency on
February 10, 2005.3
In her decision, as to issue (1), the AJ found that the evidence shows
that complainant was granted leave for March 29, 2002. The AJ noted that
although complainant asked for annual leave and was granted sick leave,
there is no dispute that complainant was granted paid leave for the date
in question. Accordingly, the AJ found that complainant did not suffer a
tangible adverse employment action. As to issue (2), the AJ found that
the agency explained that complainant was not permitted to work overtime
while his medical restriction of wearing shirts without sleeves was in
effect pursuant to agency policies concerning the clothing to be worn
in an industrial environment. The AJ found that complainant provided no
evidence that this explanation was a pretext for discriminatory animus.
The agency subsequently issued a final order on March 21, 2005, adopting
the AJ's finding that complainant failed to prove that he was subjected
to discrimination as alleged.
On appeal, complainant asserts that his claims should have been considered
within a framework of a pattern of harassment/discrimination. Complainant
asserts that the agency considered him disabled and threatened him with
termination. He asserts that he has no disability, and that the agency
knew this. He asks that the case be remanded for a hearing. The agency
requests that we affirm the final order. As an initial matter we note
that, as this is an appeal from a final order 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).
To the extent that complainant contends that the incidents in this
complaint ought to be considered jointly within a hostile work environment
framework, we note that based on the standards set forth in Harris
v. Forklift Systems, Inc., 510 U.S. 17 (1993), in order to prevail on a
claim of harassment, complainant must prove that: (1) he was subjected to
harassment that was sufficiently severe or pervasive to alter the terms
or conditions of employment and create an abusive or hostile environment;
and (2) the harassment was based on his membership in a protected class.
See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on
Harris v. Forklift Systems, Inc. at 3, 6; Cobb v. Department of the
Treasury, EEOC Request No. 05970077 (March 13, 1997). Taken together,
the incidents in question, are not sufficiently severe or pervasive to
rise to the level of unlawful harassment.
Applying a disparate treatment framework, we note that the allocation of
burdens and order of presentation of proof in a case alleging disparate
treatment discrimination under Title VII, the ADEA and the Rehabilitation
Act, is a three step procedure: complainant has the initial burden
of proving, by a preponderance of the evidence, a prima facie case of
discrimination; the burden then shifts to the employer to articulate
some legitimate, nondiscriminatory reason for its challenged action; and
complainant must then prove, by a preponderance of the evidence, that
the legitimate reason offered by the employer was not its true reason,
but was a pretext for discrimination. McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).
In this case, we will assume arguendo that complainant is regarded
as disabled, and therefore entitled to coverage pursuant to the
Rehabilitation Act. We will also assume that complainant has otherwise
established a prima facie case of discrimination on all of the alleged
bases. In this case, the agency has nevertheless articulated legitimate,
nondiscriminatory reasons for its actions, which complainant has not
shown, by a preponderance of the evidence, to be pretextual.
After a careful review of the record, the Commission finds that the
AJ's decision without a hearing was appropriate, as no genuine issue
of material fact is in dispute. See Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003). Therefore, we AFFIRM the
agency's final order.
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
February 23, 2007
__________________
Date
1 Due to a new data system, your case has been re-designated with the
above referenced appeal number.
2 Complainant also raised two additional incidents which the agency
dismissed for failure to state a claim. As complainant does not,
on appeal, provide any argument for why these issues were improperly
dismissed, we will not address them herein.
3 Prior to issuing her decision, the AJ reviewed complainant's and the
agency's responses to her Notice of Intent to Issue a Decision Without
a Hearing. The AJ also issued complainant a second Notice informing him
that he may supplement his response to the original Notice of Intent, by
citing to the record, and explaining how a document or certain testimony
raises a factual dispute on a material issue or otherwise raises an
inference of discrimination. Complainant filed a response stating, among
other things that he was not going to avail himself of this opportunity.
??
??
??
??
2
01A53601
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036