0120090708
05-05-2009
Jerry S. Quesenberry, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Jerry S. Quesenberry,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120090708
Agency No. NRCS-2005-01755
DECISION
On November 17, 2008, complainant filed an appeal from the agency's
final decision, dated October 1, 2008, concerning his equal employment
opportunity (EEO) complaint claiming employment discrimination in
violation of 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 decision.
BACKGROUND
During the period at issue, complainant worked as a Soil Resource
Specialist, GS-0470-12, in the Natural Resources Conservation
Service (NRCS), at the agency's Smithfield Field Office, in Virginia.
In approximately September 2004, complainant began experiencing pain
in his neck and left shoulder, which was diagnosed as a herniated disc.
According to the agency, complainant's last day at work was November 19,
2004.
Due to his worsening condition, complainant underwent a decompression
and cervical fusion in May 2005. Ten weeks later, complainant's doctor
provided a progress note stating that complainant could not tolerate
the duties of his job, and complainant should remain off from work.
The next month, in August 2005, a note from a health care provider
indicated that complainant would continue to be unable to work until he
was examined on October 26, 2005. Two days after that appointment date,
complainant retired from the agency.
Before retiring, complainant contacted the EEO office claiming he was
subjected to discriminatory harassment. Informal efforts to resolve
complainant's concerns were unsuccessful. On November 21, 2005,
complainant filed a formal complaint based on age (56), disability
(non-specified) and in reprisal for prior protected activity.
The agency framed the claims as follows:
(1) complainant was not paid for pay period 18 (September 4-17, 2005);
(2) on or about September 21, 2005, complainant received a Proposal to
Remove letter;
(3) complainant's request for annual leave, for the period of September
26-30, 2005, was denied; and,
(4) complainant was forced to retire effective October 28, 2005.
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). In accordance with
complainant's request, the agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b). The decision concluded that complainant failed
to prove that he was subjected to discrimination as alleged.
The agency first addressed complainant's hostile work environment claim
in terms of the bases of age and disability. According to the agency,
complainant failed to establish a prima facie case under either protected
class, in that he failed to show that he was treated less favorably
than those outside his protected classes. Nonetheless, even assuming
arguendo that a prima facie case was presented, the agency determined
that management presented legitimate, non-discriminatory reasons for its
actions.1 Regarding claim (1), complainant's payment was delayed due
to computer malfunctions. Regarding claim (2), management stated that
the letter was issued because complainant had been out for ten months,
exhausted all sick leave, and failed to indicate to the agency whether
he would be able to work (either with or without an accommodation).
The agency stated that it denied complainant's request for annual leave,
claim (3), because complainant's position served a critical function
and complainant's failure to share information prevented management
from planning the workload. Additionally, management noted that the
leave request was granted under the Family Medical Leave Act (FMLA).
Finally, the agency concluded that complainant did not meet his burden
of showing the management's reasons were pretext for an unlawful,
discriminatory motive.
Similarly, with respect to the basis of reprisal2, the agency concluded
that a prima facie case was not presented because complainant failed to
show a causal link between prior EEO activity and the alleged actions.
Once again assuming arguendo that a case of reprisal was established
by complainant, the agency cited the legitimate reasons proffered by
management that were previously described. According to the agency,
there was no evidence that complainant's purported "opposition, " five
years earlier, was related to the actions presently at issue.
Finally, the agency concluded that complainant's claim of constructive
discharge (claim (4)) also failed. The agency found that the alleged
events did not create intolerable working conditions. Further,
complainant failed to establish the actions were discriminatory.
CONTENTIONS ON APPEAL
Complainant presents no contentions on appeal.
ANALYSIS AND FINDINGS
As this is an appeal from a decision 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). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
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).
Based on a review of the record, the Commission agrees that the agency
has presented legitimate, non-discriminatory reasons for its actions.
The record indicates that complainant's payment for pay period 18 was
delayed (claim (1)), due to a problem with the certification of his
timesheet and computer errors, but that complainant received the payment
the following period. There is no evidence that the two-week delay was
motivated by discriminatory animus.
As to the proposed removal letter (claim (2)), we note that the matter
need not have even been investigated nor evaluated on the merits.
The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides, in part,
that the agency shall dismiss a complaint that alleges that a proposal to
take a personnel action, or other preliminary step to taking a personnel
action, is discriminatory. Moreover, the agency indicated that the
Proposal to Remove had been issued because complainant had been out of
work for ten months; his medical documentation kept extending his time
off; and he presented no information as to precisely when he would be
returning to work. The agency noted that complainant's job was critical
because he provided wetland determinations and technical soil data to
support filed service center staffs.
The record also shows that complainant's leave request (claim (3)),
while initially denied, was later granted when requested under FMLA.
As noted above, complainant's supervisor explained that he was only
authorized to approve leave requests for 80 hours and complainant had
been absent for an extended period. Additionally, complainant's position
was critical, so the lack of information from complainant prevented the
agency from planning its work load. The Commission also notes that in his
affidavit, complainant's second-line supervisor stated that complainant
never requested an accommodation and they "could have kept him employed
by making the necessary reasonable accommodations."
The Commission finds that complainant has not met his burden of
establishing that the agency's reasons were merely pretext to mask
discrimination. In his affidavit, complainant disputes the agency's
assertion that his position was critical and his absence impacted office
planning by arguing that another employee was fulfilling the duties of
his position. We are not persuaded.
Finally, to the extent that the complainant believes the agency's actions
created a hostile work environment the Commission disagrees. 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).
Rather, a review of the record causes the Commission to believe that the
agency made several attempts to communicate with complainant, understand
the reason for his ongoing absence, and take the necessary steps to
obtain his return. Complainant's first-line supervisor attested that he
became complainant's supervisor on November 14, 2004. Complainant had
submitted a leave request to the former supervisor the week before,
and when the leave was approved the current first line supervisor never
saw him back in the office again. Moreover, the first-line supervisor
stated that complainant "never contacted me by phone or in person" and
"never communicated with me regarding anything." Similarly, complainant
himself described his contacts with his supervisor as simply via leave
slips and doctor's notes. There is no evidence indicating that the
agency's actions unreasonably interfered with complainant's work or
created an offensive environment. Instead, we find that the agency's
actions were legitimate, reasonable, and in no way motivated by the
complainant's age, disability or prior EEO activity.
CONCLUSION
Accordingly, the agency's decision finding no discrimination was proper
and is hereby 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
May 5, 2009
__________________
Date
1 The Commission presumes for purposes of analysis only and without so
finding, that complainant is an individual with a disability.
2 In his affidavit, complainant acknowledged that he had never filed
an EEO complaint or served as a witness in an EEO matter. Instead,
he asserted that he opposed discrimination when, five years earlier, his
second-line supervisor denied his request to store his vehicle off-site
while others were permitted to do so.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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