0120092291
11-17-2009
Johnny W. Lovett, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Commissary Agency), Agency.
Johnny W. Lovett,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Commissary Agency),
Agency.
Appeal No. 0120092291
Agency No. DECA000772008
DECISION
On April 28, 2009, complainant filed an appeal from the agency's April 8, 2009 final decision concerning an 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. The appeal is deemed timely and is accepted for the Commission's de novo review pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS in part and REVERSES in part the agency's final decision.
BACKGROUND
During the period at issue, complainant had worked for the agency in various positions and at various geographical locations since 1977. In June 2007, complainant was involuntarily reassigned from a Store Director position at the Arnold Air Force Base in Tennessee to a Store Manager position at the agency's Commissary at the Redstone Arsenal in Alabama. The reassignment resulted in a type of demotion because at Redstone, a much larger Commissary, the Store Manager was under the Store Director. However, complainant did not incur a loss in pay. Before the effective date of his reassignment, complainant requested that it be reconsidered because the lengthy commute to Redstone would exacerbate his physical impairments, and he was a single parent to a teen-age child who had recently sustained third degree burns over 30% of his body and consequently required significant care. The agency denied the request citing the need for complainant's "expertise" at Redstone. 1
On August 5, 2008, complainant filed a formal EEO complaint. Therein, complainant claimed harassment based on disability (impairments: service connected back and knee injuries; high blood pressure) and in reprisal for prior protected activity retaliation when he was subjected to a hostile work environment at Redstone and then in the summer of 2008, he was not selected for a Store Director position at Arnold Air Force Base.2
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 disability based discrimination.3 Specifically the agency found that although complainant was subjected to a hostile work environment at Redstone, neither that environment nor the agency's decision not to select him was based on disability. However, due to the degree of hostility to which complainant was subjected at Redstone, the agency acknowledged that the responsible manager who remained on its payroll needed management training and ordered her to attend it.
CONTENTIONS ON APPEAL
On appeal, complainant explains how severely both his physical and mental health deteriorated when he was abused by the management at Redstone and not given the opportunity to return to Arnold when a position arose there. Complainant has subsequently retired and submitted statements from his treating psychiatrist who strongly recommended that complainant not return to work because he was at a "high risk for hurting people" (i.e. "going postal").
ANALYSIS AND FINDINGS
Claim One: Harassment
To establish a claim of harassment, complainant must prove that he was subjected to a hostile work environment by establishing that he was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in complainant's position would have found the conduct to be hostile or abusive. The Supreme Court stated that such conduct must be both objectively and subjectively offensive, such that a reasonable person would find it to be hostile or abusive, and that the victim perceived the environment to be hostile and abusive. Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998). Second, complainant must also prove that the conduct was taken because of a protected basis, i.e. in this case, disability and reprisal. Only if complainant establishes both of those elements, does the question of vicarious liability for supervisory harassment present itself.
The preponderance of evidence in the record supports complainant's claim that he was subjected to a hostile and abusive work environment. Upon arriving at Redstone, his supervisors, the Store Director and the Store Administrator, subjected him to non-stop belittling and humiliating behavior and constantly undermined him in front of outside vendors and his subordinates. Although the managers deny these actions, complainant's coworkers credibly attested otherwise.
The reason, however, that complainant's harassment claim fails is because the evidence does not support a finding that he was subjected to a hostile work environment because of disability or reprisal. Even concluding that all of Redstone management's explanations are entirely unworthy of belief, the evidence on this point is lacking. Complainant's coworkers, who believed he was subjected to horrible treatment, did not believe any of it had to do with disability but rather the Store Director and Administrator's intense dislike of him. Furthermore, although complainant engaged in prior protected activity when he asked not to be assigned to Redstone because of the taxing effect the commute would have on his impairments and the need to care for a badly burned child, there is nothing in the record that links his request for accommodation to the Redstone management's hostile and abusive treatment. To the contrary, the request was directed to an agency official other than the managers accused of harassing him, and it is clear that the Store Director and Administrator at Redstone would have much preferred his request had been granted. We cannot, as a matter of law, find the agency liable for harassment at the Redstone Arsenal.
Claim Two: Non-Selection
To prevail in a disparate treatment claim, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14.4 The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, complainant must prove, by a preponderance of the evidence, that the agency's explanation is pretextual. 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).
Similar to the harassment claim, the evidence does not support an inference of disability discrimination. However, we find that complainant established a prima facie case of retaliation for the following reasons: complainant engaged in prior protected activity when he requested reasonable accommodation before the effective date of his transfer to Redstone. While at Redstone, complainant complained repeatedly to S1 who had been his first line supervisor at Arnold and who functioned as his third line supervisor at Redstone. Complainant complained to S1 about how the way that the Store Director and Administrator were treating him was adversely affecting his health and continued to ask to be allowed to return to Arnold. Thus, S1 was aware of complainant's ongoing protected activity. Complainant was not selected for the Store Director position at Arnold despite the fact that he had previously occupied this position and received positive performance reviews. It was S1 who made the selection. We therefore conclude that there is sufficient evidence to support an inference of retaliatory animus.
The burden to explain its action now shifts to the agency. The agency's explanation must be sufficiently clear to raise a "genuine issue of fact" as to whether discrimination occurred. Burdine, 450 U.S. at 254. Moreover, it must "frame the factual issue with sufficient clarity so that [complainant] will have a full and fair opportunity to demonstrate pretext." Id. at 255-256. We hold that the agency did not adequately explain its decision not to select complainant. In reaching this conclusion, the agency stated that it chose the selectee by exercising its hiring authority to reassign an individual to a different position as long as the new position was within the same payband as the position from which the individual was transferred. While this answer explains the manner in which the selectee was placed, this response does not explain the reason for the selection In addition, S1 stated that he felt like he was directed by his immediate superior to hire the selectee. The immediate supervisor had left the agency's employ by the time this complaint was investigated, and the agency failed to secure testimony from that individual. As a result, we find that the agency offered no explanation for its hiring decision which would provide complainant with a full and fair opportunity to demonstrate pretext. This constitutes a failure on the agency's part to meet its burden of production under McDonnell Douglas. The consequence of that failure is that complainant, having established a prima facie case, prevails without having to make any demonstration of pretext.
CONCLUSION
Based on a thorough review of the record and complainant's contentions on appeal, we AFFIRM the agency's final decision as to its determination that complainant did not establish he was discriminated against on the basis of disability.
However, we find that the agency retaliated against complainant for engaging in prior protected EEO activity when he was not selected for the Store Director position at the Arnold Air Force Base Commissary in the summer of 2008. To that extent, we REVERSE the finding of no discrimination on this matter, in the agency's final decision. We REMAND this matter to the agency, for further processing in accordance with the ORDER below.
ORDER
The agency is ordered to do the following within (ninety) 90 days of this decision becoming final unless otherwise indicated below:
1. No later than sixty (60) calendar days from the date which this decision becomes final, offer complainant in writing, the position of Store Director or a position of equal grade and pay, duties, responsibilities, and benefits, at the Arnold Air Force Base Commissary, retroactively effective to the date he would have entered into the subject position (the date the selectee entered into the subject position).
Complainant shall notify the agency within fifteen (15) calendar days from the date he receives the offer whether he will accept the offer. Failure to notify the agency within the specified time frame without good cause will be interpreted as a rejection of the offer. If complainant accepts the offer, he must undergo and pass a psychiatric fitness for duty examination before the agency is required to return him to duty.
2. Determine the appropriate amount of back pay, with interest, and other benefits due complainant, pursuant to 29 C.F.R. � 1614.501, no later than sixty (60) days after the date complainant responds to the offer. The back pay shall extend from the date complainant would have assumed the position through the date he either declines the offer, fails the psychiatric examination or assumes the position. The complainant shall cooperate in the agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the agency shall issue a check to the complainant for the undisputed amount within sixty (60) calendar days of the date the agency determines the amount it believes to be due. The complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision;"
3. Conduct a supplemental investigation into complainant's entitlement to compensatory damages, including providing the complainant an opportunity to submit evidence of pecuniary and non-pecuniary damages. For guidance on what evidence is necessary to prove pecuniary and non-pecuniary damages, the parties are directed to EEOC Enforcement Guidance: Compensatory and Punitive Damages Available Under � 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at www.eeoc.gov). The agency shall complete the investigation and issue a final decision determining the appropriate amount of damages within 150 calendar days after this decision becomes final. The final decision shall include appropriate appeal rights.
4. Pay complainant's costs, as associated with the processing of this case. Complainant has 30 days from the date this decision becomes final to submit a petition to recover costs, with appropriate supporting documentation. The agency has 30 days from the submission of the costs petition to issue a decision regarding costs, along with payment to complainant of the undisputed costs.
5. Provide a minimum of eight (8) hours of EEO training, with special emphasis on retaliation, for all involved management officials still employed with the agency.
6. Consider taking appropriate disciplinary action against the responsible management officials still employed by the agency. The Commission does not consider training to be disciplinary action. The agency shall report its decision to the Compliance Officer. If the agency decides to take disciplinary action, it shall identify the action taken. If the agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the agency's employ, the agency shall furnish documentation of their departure date(s).
POSTING ORDER (G0900)
The agency is ordered to post at its Arnold Air Force Base Commissary copies of the attached notice. Copies of the notice, after being signed by the agency's duly authorized representative, shall be posted by the agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
Compliance with the Commission's corrective action is mandatory. The agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. The agency's report must contain supporting documentation, and the agency must send a copy of all submissions to the complainant. If the agency does not comply with the Commission's order, the complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0408)
This decision affirms the agency's final decision/action in part, but it also requires the agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the agency, or your appeal with the Commission, until such time as the agency issues its final decision on your complaint. 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
November 17, 2009
__________________
Date
1 There is evidence in the record suggesting that the actual reason for transferring complainant was otherwise: namely that a Store Manager at Redstone was accused of sexual harassment and had to be moved.
2 Not at issue in this complaint is whether the original reassignment to Redstone was in violation of the Rehabilitation Act.
3 The agency's final decision failed to address the alleged retaliation although the basis was raised with the EEO counselor, alleged in the formal complaint, and accepted for investigation.
4 Complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the agency was aware of his protected activity; (3) subsequently, he was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340 (September 26, 2000).
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0120092291
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013