01a43466
07-07-2005
John L. Faile, Jr., Complainant, v. Stephen A. Perry, Administrator, General Services Administration, Agency.
John L. Faile, Jr. v. General Services Administration
01A43466
July 7, 2005
.
John L. Faile, Jr.,
Complainant,
v.
Stephen A. Perry,
Administrator,
General Services Administration,
Agency.
Appeal No. 01A43466
Agency No. 2002R3PBSJLF8
Hearing No. 170-A3-8202X
DECISION
Complainant timely initiated an appeal from the agency's final
order concerning his equal employment opportunity (EEO) complaint of
unlawful employment discrimination in violation of 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 final
order.
The record reveals that complainant, a Realty Specialist, GS-1170-07
Intern under an accepted service appointment at the Charleston, West
Virginia Group Office, filed a formal EEO complaint on March 14, 2002,
alleging that the agency discriminated against him on the basis of
disability (low back and left knee impairments) when he was harassed
and terminated during his probationary period.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). After a hearing, the AJ issued a decision
finding no discrimination.
In her decision, the AJ drew several adverse inferences against the agency
for not completely and fully responding to discovery requests and/or
for not securing the presence of two witnesses at the hearing. First,
at the hearing, the AJ refused to allow the agency to enter any documents
into the record and to question any of the witnesses. Additionally, the
AJ drew an inference that a management official, in December 2001, asked
complainant on more than one occasion for information which he expressed
that he did not have. Additionally, the AJ drew an inference that from
January 1, 2001 through March 2002, management officials did not ask
any employee other than complainant to wash dishes, change water cooler
bottles, and/or move furniture or other office equipment. The AJ also
drew an inference that complainant's supervisor was aware of complainant's
impairments; that is, that complainant had been given a 10 point veteran's
preference based on eligibility from the Department of Veteran's Affairs
and received a disability retirement for service connected disability.
The AJ also inferred that complainant's supervisor was aware of a United
States Postal Service letter which was in complainant's job application,
stating that he was rejected from a part-time job due to disability.
Additionally, the AJ drew an inference that complainant presented at
least one or two topics prior to the deadline for his oral presentation,
and that they were rejected by management, and that management set
the deadline for March 2002 for the topics to be presented. The AJ
additionally inferred that an intern in another office and supervised
by different individuals, was given short-term rotational assignments in
Philadelphia, was issued a palm pilot and a cell phone, and complainant
was not given these opportunities in West Virginia. Finally, the AJ
inferred that a different intern in the Philadelphia office was allowed
to attend the monthly realty meetings in Philadelphia.
The AJ then found that complainant did not establish that he was a
qualified individual with a disability at the time he was terminated from
the agency. The AJ assumed arguendo that complainant was an individual
with a disability, and found that complainant did not show that he was
treated differently than similarly situated individuals, not in his
protected group. The AJ noted that he found that the other interns
who worked in the Philadelphia Office were not similarly situated
to complainant as they had different supervisors and were trained
by different coaches and trainers. Additionally, the AJ found that
complainant did not show a causal connection between his impairments
and any actions taken by the agency. The AJ addressed complainant's
assertion that the interns had a separate trainer and coach, and noted
that the record shows that there were not enough Realty Specialists
available in the West Virginia office to allow complainant or the
Building Management Intern to have a trainer and a separate coach.
Regarding complainant's contention that he was not given a cell phone,
the AJ noted that complainant was given an agency telephone card.
Regarding complainant's contention that he was asked to wash dishes and
change the water cooler bottle and then ridiculed by his co-workers as he
changed it, the AJ found that there was no evidence that complainant was
asked to perform these tasks because of his impairment.<0> Additionally,
the AJ noted that complainant admitted he did not tell anyone he could
not perform the tasks because of his impairment. Regarding being asked
to move desks, the AJ found that complainant failed to show that other
employees were never asked to move furniture. Again, the AJ found that
complainant did not tell anyone that he was unable to perform this duty.
Regarding complainant's contention that there was a lack of lighting
in his office, the AJ found no evidence that complainant was denied
lighting because of his impairment or that his request constituted any
kind of reasonable accommodation.
Regarding the termination, the AJ found that the supervisor (S1) testified
that complainant was terminated because he failed to successfully
perform the duties and responsibilities or his position, and did not
meet the written performance standards. S1 stated that during the
first six months of complainant's internship, complainant was mostly
in a training mode, and that the successful rating given to him on his
first evaluation panel review in September 2001 was primarily based on
complainant's successful completion of training. S1 stated that by the
second rating issued on November 21, 2001, he raised concerns which had
surfaced regarding complainant's communication and interpersonal skills.
S1 stated that although he gave complainant the benefit of the doubt
and gave him a �Satisfactory� rating, he documented his concerns in
great detail, and provided these notes to complainant. S1 testified
that by the time the evaluation panel met on January 12, 2002, it was
clear that complainant was not making satisfactory progress in meeting
his critical element.<0> S1 additionally found that complainant could
not show that the agency's reasons were pretexts. In so finding, the
AJ noted that other management officials provided supporting testimony
as to the reasons for complainant's termination. The agency's final
order implemented the AJ's decision.
On appeal,<0> complainant, through counsel, contends that the AJ's
findings are incorrect and must be reversed. Specifically, complainant
contends that he is an individual with a disability because he currently
has physical impairments that substantially limit his major life activity
of sleeping. Additionally, complainant contends that he has a �record� or
having physical impairments that, for a period of six years, substantially
limited his major life activity of working. Further, complainant alleges
that similarly situated individuals were treated differently than he,
and that he has established pretext. In response, the agency requests
that the Commission affirm the final order.<0>
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.
As to complainant's allegation of harassment, 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). The evidence in the record is insufficient
to support a finding that management's actions towards complainant were
sufficiently severe or pervasive to alter the terms or conditions of
employment and create an abusive or hostile environment.
We now address complainant's contention that he was subjected to disparate
treatment during his employment. Assuming arguendo that complainant is
an individual with a disability, we find that the agency has articulated
legitimate, nondiscriminatory reasons for its actions, which complainant
has failed to prove, by a preponderance of the evidence, are pretext
for discrimination.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision referenced the appropriate regulations,
policies, and laws. We discern no basis to disturb the AJ's decision.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, 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
July 7, 2005
__________________
Date
0 1The AJ noted that co-workers testified that they laughed when
complainant did these duties because he had initially acted as if such
duties were beneath him.
0 2For instance, S1 stated that he had concerns about complainant's
attitude, alienation of his trainer, judgment and ability to deal with
various levels of stress and performance, failure to identify a topic
in a timely manner for his intern oral presentation, and failure to be
prepared for a meeting on his assigned projects.
0 3The agency contends that the Commission never acted on complainant's
request for an extension to file a brief in support of appeal, and that
therefore, complainant's supporting brief should not be considered.
We note, however, that the record contains a letter from the Commission,
addressed to complainant, and copied to the agency, stating that an
extension would be granted until July 6, 2004. Complainant's brief was
postmarked July 6, 2004, and was therefore, timely submitted.
0 4We note that in the �Agency's Response To Appeal,� the agency argues
that the AJ erred concerning sanctions, the testimony of a physician,
and collateral estoppel. We will not entertain such arguments, however,
as the agency fully implemented the AJ's decision in its final order.