01A32644
04-05-2004
John Angle, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
John Angle v. Department of Agriculture
01A32644
April 5, 2004
.
John Angle,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A32644
Agency No. 000321
Hearing No. 100-A1-8008X
DECISION
Complainant timely initiated an appeal from the agency's final decision
(FAD) concerning his equal employment opportunity (EEO) complaint of
unlawful 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission AFFIRMS
the agency's FAD.
The record reveals that complainant, a GS-12 Statistician, Food
Assistance and Rural Economy Branch, in the agency's Economic Research
Service in Washington, D.C. (�facility�), filed a formal EEO complaint
on December 28, 1999, alleging that the agency had discriminated against
him on the bases of disability (excessive flatulence), perceived sexual
orientation and reprisal for prior EEO activity when: (1) his request
to delay or cancel his yearly Economic Position Classification System
(EPCS) review was denied and he was not allowed the required ninety (90)
day preparation time; (2) he received a lower than expected mid-year
performance appraisal; (3) the agency ignored his concerns that he was
being administratively isolated; (4) he was directed to be visible from
his internal window at all times; (5) the agency failed to take action
to stop verbal and other harassment, such as door slamming; and (6)
the agency applied different standards to him regarding the clearance
of his publications.
Complainant alleged that he has suffered from excessive flatulence
since 1994. In 2000, he opined that he had celiac disease but this
condition has never been diagnosed by a physician. The record indicates
that complainant's physicians have stated that his flatulence problem
is medically trivial and is physically normal. Believing he was the
victim of discrimination, complainant sought EEO counseling and filed a
formal complaint with the agency on December 28, 1999. At the conclusion
of the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
The AJ issued a decision without a hearing, finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of disability discrimination. Specifically, the AJ found that
complainant failed to present any evidence that he is an individual with
a disability under the Rehabilitation Act. Further, the AJ found that
discrimination on the basis of sexual orientation is not �within the
purview of the laws enforced by the [Commission] and cannot be considered
here.� AJ's Decision at 3. Finally, the AJ found that complainant failed
to establish a prima facie case of retaliation, as there is no evidence
that he engaged in prior EEO activity or other protected activity.
The AJ also found that considering complainant's allegations under
a harassment violation, the allegations did not rise to the level of
actionable hostile work environment. In so finding, the AJ noted that the
alleged conduct by the agency was not sufficiently severe or pervasive to
have altered the conditions of complainant's work environment. Further,
the AJ found that complainant failed to proffer any evidence to infer that
the alleged acts of harassment were based on his alleged disability or in
retaliation for his alleged prior protected activity. As a result, the
AJ found that complainant failed to establish that he was discriminated
against as he alleged. The agency's FAD implemented the AJ's decision.
On appeal, complainant restates arguments previously made in opposing
the AJ's decision without a hearing. Complainant contends that he was
prejudiced by the AJ's decision to issue a decision without a hearing,
and that the AJ's decision was a �mockery of justice.� In response,
the agency restates the position it took in its FAD, and requests that
we affirm its final order.
After a careful review of the record, the Commission finds that grant of
summary judgment was appropriate, as no genuine dispute of material fact
exists. Construing the evidence to be most favorable to complainant, we
note that complainant failed to present evidence that any of the agency's
actions were motivated by discriminatory animus toward his protected
classes. Initially, the Commission finds that even assuming, arguendo,
that complainant was an individual with a disability, there is no evidence
to conclude that any of the agency alleged actions against complainant
were done due to his alleged disability of excessive flatulence.
In so finding, we note that the agency stated that complainant was
directed to be visible at his internal office window as he failed to
follow emergency evacuation procedures by remaining in his office during
fire drills. Investigative Report (IR) at Exhibit 5. In addition,
while complainant reported specific incidents of alleged harassment to
his supervisor, he failed to provide the names of any facility employees
involved in the incidents. Id. The agency also stated that complainant's
request for a delay in his EPCS review was granted by the agency four
(4) days after it was requested. IR at Exhibit 7.
Further, we concur with the AJ's finding that complainant's claim
of discrimination based on his perceived sexual orientation is not
a valid claim under Title VII. The Commission has consistently held
that discrimination based on sexual orientation is not actionable under
Title VII. Barbagallo v. USPS, EEOC Appeal No. 01980167 (July 5, 2001);
Marucci v. Dept. of the Army, EEOC Appeal No. 01982644 (October 27, 2000);
Morrison v. Department of the Navy, EEOC Request No. 05930964 (June 16,
1994) (claim that harasser told co-workers that complainant was gay and
had been seen kissing another man was based on complainant's perceived
sexual orientation, not his sex, and therefore was not actionable as
sex discrimination under Title VII).
In addition, we find that complainant failed to establish a prima
facie case of retaliation. The record establishes that complainant
sought EEO counseling and pursued an informal complaint in April
of 1998, and contacted an EEO Counselor in September of 1999 prior
to filing his formal complaint. As stated by the agency, all of the
agency's actions to which complainant refers to in his formal complaint
occurred at least 15 months after he pursued his informal complaint, and
occurred before his contact with the EEO Counselor in September of 1999.
In addition, complainant has failed to proffer any evidence of a causal
connection between the agency's actions and his prior EEO activity.
The Commission also concurs with the AJ's finding that the totality
of the agency's actions were not sufficiently severe or pervasive to
constitute harassment due to a hostile work environment under Title VII.
See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).
Therefore, after a careful review of the record, including complainant's
contentions on appeal, and
arguments and evidence not specifically addressed in this decision,
we AFFIRM the agency's FAD.
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
April 5, 2004
__________________
Date