0120081741
08-31-2009
James F. Spell, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
James F. Spell,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120081741
Hearing No. 450-2007-00341X
Agency No. ARHOOD07JAN00027
DECISION
On February 27, 2008, complainant filed an appeal from the agency's
January 28, 2008 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. and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. � 621 et seq. 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 Supervisory Orthotist Prosthetist, GS-11, in the Brace Shop at the
Darnall Medical Center at Fort Hood, Texas. Complainant was responsible
for the day-to-day operations of the Brace Shop and the repairing of old
appliances and production of new appliances. The record reveals that
complainant and a subordinate clerical employee had a verbal altercation.
Complainant summoned the military police because he felt threatened but
an investigation into the incident did not substantiate complainant's
position. It was recommended that both complainant and the clerical
employee attend Violence in the Workplace and Anger Management Training.
On March 7, 2007, complainant filed an EEO complaint wherein he claimed
that he was discriminated against on the bases of national origin
(German), age, sex (male), and reprisal when between April 12, 2006
and January 8, 2007, he was subjected to a hostile work environment by
management officials of the Department of Orthopedics and Rehabilitation.
The agency accepted for investigation each of the incidents that comprise
the harassment claim except for the claim that stated complainant was
the management official in a grievance filed by a clerical employee
who alleged a hostile work environment when she was detailed from
the Brace Shop after allegedly threatening complainant. Complainant
claimed that the Administrative Officer and others did not want the
clerical employee moved. The agency dismissed this claim pursuant to
29 C.F.R. � 1614.107(a)(1) on the grounds of failure to state a claim.
The agency stated that the reprisal complainant referred to was a union
grievance, and not a discrimination complaint. Complainant has not
challenged the dismissal of this issue and furthermore we find it proper.
Even if considered as part of the claim of a hostile work environment,
the alleged incident does not alter our finding that complainant failed
to show that any agency action was motivated by discrimination.
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 and the AJ held a hearing on December 12, 2007,
and issued a decision on January 9, 2008, finding that no discrimination
occurred.
The AJ observed that complainant claimed harassment with regard to his
performance evaluation, not being allowed to participate in decisions
regarding the Brace Shop, being asked to give a rose to a subordinate
clerical employee with whom he had a verbal altercation, failing to
receive a suggestion award, being required for a short period of time to
notify his Supervisor when the Brace Shop was closed and the Supervisor's
refusal to replace the CAD CAM operator. The AJ noted that complainant
was rated as "Needs Improvement" by the Supervisor and there were bullet
items listed.
Complainant objected to the following bullet items:
Continually displayed resistance to attend mandatory training. Leadership
training is scheduled for new rating period. Mandatory training required
for Prevention of Workplace Violence and Anger Management Training.
Recommended to meet with Department of Orthopedics and Rehab Providers
quarter to streamline the introduction of new product lines. None were
scheduled or conducted during the rating period. Has not provided
the Department of Orthopedics and Rehab timely budgetary information,
as required quarterly. Loss of property occurred, a television, from
the Orthopedic Appliance Facility. As key control officer, he was
found liable.
The senior rater issued the following bullet comments:
Performance is almost impossible to quantify as he resisted computer
animation documentation; he has failed to document sufficiently to justify
the personnel authorized or purchases made. Although I have heard many
comments about the Brace Shop, there is a dearth of favorable ones.
Makes a good first impression to authorities in complete contrast to
his normal behavior. Quality of patient care is acceptable.
The AJ found that the alleged incidents together did not create a
hostile or intimidating atmosphere which unreasonably interfered with
complainant's work performance. The AJ further found that none of
the actions at issue occurred due to complainant's national origin,
sex, age or any EEO activity. The AJ noted that complainant did not
engage in any prior EEO activity as the settlement of the subordinate
clerical employee's grievance did not equate to engaging in protected
EEO activity. Further, the AJ observed that complainant presented no
evidence of any animus held by the alleged discriminatory officials
toward persons of complainant's protected groups.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that he was subjected to discrimination
as alleged.
On appeal, complainant contends with regard to his performance evaluation
that his Supervisor relied on a non-credentialed administrative employee
(the Administrative Officer), junior in grade to complainant, who
provided untrue input. Complainant further claims that his senior rater
did not even know him. According to complainant, despite the fact that
he had been approved as a witness, the agency made no effort to locate
his senior rater who had left active duty. Complainant challenges the
agency's argument that he had increased management responsibilities as
he notes that he was a longtime supervisor who supervised one to three
employees. With respect to his performance evaluation, complainant
maintains that a senior employee such as himself would not have his
rating levels drop from "Excellent" and success level 1 to only "Fair".
Complainant contends that he has been denied the opportunity to establish
pretext and motive by being denied as a witness the Lieutenant Colonel
who rated him as "Excellent" and success level 1 prior to the rating
at issue. Complainant states that the agency did not rebut his testimony
that his abrupt change in rating began with the dispute in the workplace
caused by the subordinate clerical employee who filed a hostile work
environment claim against him and about whom he had filed a report with
the police about his concerns of violence. According to complainant,
he took aggressive action to address this employee's misconduct and
management permitted him to resolve the issue, but then took punitive
and retaliatory actions against him.
In response, the agency asserts that complainant has presented no
new evidence or arguments, not previously reflected in the record.
The agency maintains the complainant's objection to the Administrative
Officer as intermediate rater is unfounded as there is no prohibition
against a lower graded individual being designated an intermediate rater.
The agency states that the intermediate rater's primary input was to
apprise the Supervisor of complainant's compliance with the various
administrative responsibilities required of all supervisors in the
department. According to the agency, there is substantial evidence in
the record justifying why complainant's performance was only "Fair" for
the 2006 rating period. The agency notes that the scope of complainant's
responsibility expanded in 2006 and that what was lacking during this
rating period was his responsiveness to training and budget reporting
requirements. The agency stated that as a result, the Supervisor
identified several objectives as needing improvement. The agency states
that its regulation requires that when the Supervisor notes that a senior
system employee needs improvement in one or more objectives, the senior
rater must reflect an overall rating of "Fair". The agency denies
complainant's contention that it did not attempt to locate the senior
rater for the hearing. The agency notes that he left federal service and
was no longer within its administrative reach to secure his presence for
the hearing. The agency states that his statements are well documented in
the investigative record. With regard to complainant's contention that
he was denied the opportunity to establish pretext or motive, the agency
asserts that complainant has provided no evidence to substantiate the
Lieutenant Colonel's relevance as a witness. The agency maintains that
the record is replete with justification for the rating that complainant
received after the Lieutenant Colonel was no longer his senior rater.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that 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 in this case, however, since 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). 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); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
A single incident or group of isolated incidents will not be regarded
as discriminatory harassment unless the conduct is severe. Walker
v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the
harassment is sufficiently severe to trigger a violation of Title VII
[and the Rehabilitation Act] must be determined by looking at all the
circumstances, including the frequency of the discriminatory conduct,
its severity, whether it is physically threatening or humiliating, or
a mere offensive utterance, and whether it unreasonably interferes with
an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17
(1993).
To establish a claim of harassment, complainant must show that: (1) he
is a member of the statutorily protected class; (2) he was subjected to
harassment in the form of unwelcome verbal or physical conduct involving
the protected class; (3) the harassment complained of was based on the
statutorily protected class; and (4) the harassment affected a term or
condition of employment and/or had the purpose or effect of unreasonably
interfering with the work environment and/or creating an intimidating,
hostile, or offensive work environment. Humphrey v. United States Postal
Service, EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11.
The harasser's conduct should be evaluated from the objective viewpoint of
a reasonable person in the victim's circumstances. Enforcement Guidance
on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March
8, 1994). Further, the incidents must have been "sufficiently severe
and pervasive to alter the conditions of complainant's employment and
create an abusive working environment." Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore Services,
Inc., 23 U.S. 75 (1998). In the case of harassment by a supervisor,
complainant must also show that there is a basis for imputing liability
to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th
Cir. 1982).
With regard to the alleged incidents of harassment, the agency explained
that complainant was asked to give a rose to the clerical employee
because a rose was given to each clerical employee in the Department
for Secretary's Day. As for the delay in consideration and subsequent
denial of a suggestion award for complainant, the Supervisor testified
that it took him a long time to receive the data for evaluation of the
value of the suggestion and that he subsequently decided not to recommend
an award for complainant because the suggestion did not significantly save
money for the agency. As for not replacing the CAD CAM Operator position,
the Supervisor testified that it would not be an appropriate utilization
of agency resources to fill the position until the CAD system was working
sufficiently to support the position, as it had not yet met expectations.
With regard to complainant being required to e-mail his Supervisor when he
was going to be absent from the Brace Shop, the Supervisor testified that
at the time complainant was the only employee in the shop and he did not
want to send patients there when the shop was closed. With respect to
complainant's claim that he was not allowed to participate in decisions
regarding the Brace Shop, the agency noted that complainant was asked
if he wished to interview the candidates for an Orthotist position.
As for the "Fair" rating on complainant's performance evaluation, the
agency explained that complainant did not provide budgetary information
in a timely manner, resisted attending mandatory training and did not
schedule or conduct meetings with the Department of Orthopedics and
Rehab Providers with regard to the introduction of new product lines.
We find that the agency has articulated legitimate, nondiscriminatory
reasons for complainant's "Fair" rating on his performance evaluation
and that it has also provided a legitimate, nondiscriminatory explanation
for the other alleged acts of harassment.
Complainant attempts to show pretext by claiming that agency officials
harassed him since his altercation with the clerical employee.
Complainant claims that the Administrative Officer's friendship with
the clerical employee influenced him to provide negative information
about complainant's job performance. Complainant states that the clerical
employee used her reassignment from the Brace Shop to the Podiatry Clinic
in the main hospital building to portray herself to agency officials as
an innocent victim. Complainant further claims that the Administrative
Officer should not have been allowed to provide input on him given that
he was lower in grade than complainant. Additionally, complainant argues
that the Administrative Officer never prompted him to submit a budget
request, but sent him a message that his budget submission was late.
Complainant states that the previous Administrative Officer included him
in budgetary decisions and only required a simple summary of the budget
for the year. According to complainant, the current Administrative
Officer was never specific about what information he needed and did not
respond when he e-mailed him to ask what he required.
These arguments are not persuasive and do not establish that
discriminatory harassment occurred. At most, they establish a breakdown
in communications between the Administrative Officer and complainant as
to complainant's job responsibilities as well as a possible personal
dislike between them. Moreover, complainant's claim of reprisal is
negated by the fact that the grievance that complainant addressed on
behalf of management against the clerical employee does not constitute
EEO activity. As for complainant's contentions regarding officials
that he hoped would testify at the hearing, the agency explained that
the senior rater had left federal service and was no longer within the
agency's administrative reach to secure his presence for the hearing.
With regard to the Lieutenant Colonel that rated complainant before the
relevant evaluation period, complainant has not established that the AJ
clearly erred in denying her as a witness. Upon review of the record,
the Commission finds that the AJ's decision finding no national origin,
age, sex or reprisal discrimination is supported by substantial evidence.
The agency's final action finding 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
August 31, 2009
__________________
Date
2
0120081741
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
8
0120081741