Jerry S. Quesenberry, Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionMay 5, 2009
0120090708 (E.E.O.C. May. 5, 2009)

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

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