0120061776-_r_Title_VII_and_Rehab__Act_Merits_Short_Form
08-14-2008
Joseph P. Sipolo, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Joseph P. Sipolo,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01200617761
Agency No. 04624445001
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's January 4, 2006, final decision concerning
his equal employment opportunity (EEO) complaint alleging 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.
Complainant alleged that the agency discriminated against him on the
bases of disability (anxiety disorder/clinical depression) and in reprisal
for prior protected activity when:
1. (a) his supervisor (S1) changed his work site to the Military
Enlisted Processing Station (MEPS) in a space without proper lighting;
(b) on January 27, 2004, S1 issued him a Letter of Reprimand (LOR)
for disrespectful conduct and for not complying with leave policies;
and (c) on February 25, 2004, S1 suspended him for five calendar days
as a result of disrespectful conduct (based on disability and reprisal);
2. (a) by letter dated June 1, 2004, he was suspended for two
calendar days for Failure in Carrying Out Proper Instructions related
to requesting leave; (b) he was denied a reasonable accommodation for
a disability (anxiety disorder/clinical depression) when the Command
failed to respond to his requests made the week of May 10, 2004, for a
working hour change from 0730 - 1600 to 0700 - 1530; and (c) in May 2004,
he informed the Command of disparaging remarks made to him by a co-worker
(Human Resources Assistant), and nothing was done to remedy the situation
(based on reprisal); and
3. (a) he was suspended on June 8 and 9, 2004, without written
notification until June 10, 2004, and without a witness of the
notification; (b) the Command requested medical updates of his medical
condition directly from his doctor on five occasions in late June and
early July 2004; (c) S1 stated that she would terminate him from Federal
Service upon his return from sick leave; (d) on October 4, 2004, at S1's
request, the Commander, Naval Recruiting Command, reviewed his foreign
education verification files, whereas the files of other Education
Specialists were not reviewed; and (e) S1 was "setting [him] up for
failure" by not furnishing a vehicle for his use to carry out his duties
of visiting high schools, colleges, job corps, etc., although the other
Education Specialist had use of a vehicle, and S1 allowed applicants to
be processed in without giving prior notice, thus not providing him with
sufficient time for evaluation (based on reprisal).
Following an investigation, complainant was given notice to either
request a hearing before an EEOC Administrative Judge (AJ) or receive
a final agency decision (FAD). When complainant did not respond he
was issued a FAD. Complainant claimed that he had requested a hearing,
but documentation regarding his request could not be found, so the FAD
was issued.
The FAD found that complainant failed to establish a prima facie case
of disability discrimination because complainant acknowledged that his
condition (stress) did not impair him in the performance of his duties,
that his medication controlled his symptoms and reduced or eliminated any
substantial limitation of his major life activities, and that neither of
his supervisors, (S1) or (S2), regarded him as being unable to perform
the essential functions of his position. Notwithstanding, the agency
indicated that, even if complainant had established a prima facie case
of disability discrimination, the agency had articulated legitimate,
nondiscriminatory reasons for its actions. 2
Specifically, the agency indicated that the record showed that:
complainant was assigned to his location pursuant to a settlement
agreement of a prior EEO complaint; the problem with the lights was
corrected as soon as was practical given that the Command was a tenant
in the building and was subject to the repair schedule of the buildings
owner; the LOR was in response to complainant's repeated disrespectful
and insubordinate conduct and e-mail messages he sent throughout the
Command and outside the Command; complainant was suspended for five
days because he continued to engage in similar disrespectful conduct;
complainant and his coworkers were advised of the proper procedures
for requesting leave, and complainant acknowledged same, however, he
still failed to follow those procedures and was suspended for two days.
Regarding complainant's request for accommodation, the agency indicated
that it found that the optimum work hours for the Education Specialists
were 0800 - 1630; however complainant requested that his hours be changed
to 0700 - 1530 as an accommodation for the stress caused by traffic.
The agency concluded, however, that in order to accommodate complainant's
request and still meet mission requirements, complainant work hours were
changed to 0730 - 1600.
The agency also maintained that it investigated complainant's claims
about disparaging remarks being made against him. The agency found
that a statement about complainant being "a rat" was not made and a
comment regarding Satan referred to excessive heat in the building
and not complainant. Complainant was asked to sign and back date the
suspension letter because management had failed to retain a copy of
the original; following surgery, complainant was asked to provide
medical documentation and a leave request to support his absences
beyond June 29, 2004, which had been approved; S1 denied telling
complainant that he would be fired after he returned from sick leave;
regarding the foreign education transcripts, the agency indicated that
complainant was not singled out because it reviewed all foreign education
transcripts and documentation in order to justify the Command's request
to its Headquarters to change its policy to allow certain countries not
to provide the full transcript; the agency indicated that the Command
had only one government vehicle which complainant and his coworker were
to share and mass transit vouchers and authorization of the government
vehicle for domicile-to-duty could be authorized if established guidelines
were met; and the agency had already agreed that complainant would be
given ample time, namely 48 hours, to perform applicant evaluations.
CONTENTIONS ON APPEAL
On appeal, complainant contends, among other things, that he requested a
hearing twice. He also contends that the agency admits to punishing him
too harshly with respect to his suspension which was reduced from twelve
days to two, and he maintains that he was the only civilian to which this
policy was applied. Further, he indicates that the office space he was
required to work in is currently being closed due to dangerous conditions.
Finally, he contends that he was called a rat, and he does not believe
that great Satan comment referred to heat.
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").
In the matter before us, complainant claimed that the agency discriminated
against him based on reprisal for prior EEO activity. The analysis of
claims claiming disparate treatment based on reprisal is patterned after
the three-step analysis introduced in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). First, complainant is required to
establish a prima facie case by showing an inference of discrimination;
next, the agency must articulate a legitimate, nondiscriminatory reason
for its actions; and, lastly, the burden of persuasion reverts back to
the complainant to demonstrate, by a preponderance of the evidence, that
the agency's reason(s) for its action was a pretext for discrimination,
i.e., that the agency's reason was not its real reason and that it acted
on the basis of discriminatory animus. See Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981); St. Mary's Honor Center
v. Hicks, 509 U.S. 502 (1993); see also U.S. Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 715-716 (1983).
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the
Commission to affirm the agency's final decision. We find that,
even assuming arguendo that complainant established a prima facie
case of disability discrimination and reprisal, the agency articulated
legitimate, nondiscriminatory reasons for its actions, and complainant
failed to show that the reasons offered were pretext for discrimination.
Specifically, with regard to issue number (1), the record reveals that
complainant's work site was changed for the sake of efficiency, and that
there was a problem with the lighting in the work area. Notwithstanding,
the agency maintained that it made every attempt at getting the problem
resolved with the building's owners. The agency also maintained that it
supplied additional lighting to complainant and his coworker until the
problem was resolved. Further, the record shows that complainant was
sent a letter of reprimand because of disrespectful conduct that had been
documented for at least eight months and for his failure to comply with
leave policies after he had been reminded several times. The Commission
finds that complainant provided no evidence that demonstrated that the
agency's nondiscriminatory reasons were pretext for discrimination or
that discriminatory animus was considered in regard to these actions.
With respect to issue number (2), the Commission finds that the record
supports the agency's decision to suspend complainant. The record reveals
that complainant refused to follow the established leave procedures
which required him to request leave prior to needing it and required
him to speak to a supervisor before taking the leave. Complainant was
not the only one required to follow the leave procedures. Moreover,
we find that complainant does not dispute that he did not follow the
procedures. Instead, he appears to argue that it was unfair that he had
to follow the procedure and that in the past he did not have to do so.
Notwithstanding, we find that complainant has not shown that the agency's
articulated nondiscriminatory reason is pretext for discrimination.
Regarding complainant's request for reasonable accommodation, under
the Commission's regulations, federal agencies may not discriminate
against individuals with disabilities and are required to make reasonable
accommodation for the known physical and mental limitations of qualified
individuals with disabilities, unless an agency can show that reasonable
accommodation would cause an undue hardship. See 29 C.F.R. �� 1630.2(o)
and (p). Here, the agency indicated that complainant stated that
he wanted to change his work hours so that he could spend less time
in traffic. Complainant was offered both an earlier start time at
7:30 a.m. and a later time at 10:00 a.m. in order to alleviate the
stress of traffic, but he was not satisfied with either suggested time.
Generally, the Commission has held that complainant is not entitled to
the accommodation of his choice as long as an effective accommodation
is offered. In the instant case, we find that the agency provided
complainant with an effective reasonable accommodation even though it
was not the one he wanted.
Regarding issue number (3), the Commission finds that the agency
articulated legitimate, nondiscriminatory reasons for its actions
with respect to these claims. The record shows that complainant was
provided notification of his suspension. When the agency failed to
keep a copy of the notice, it asked complainant to sign again, and he
refused. There is no indication that discriminatory animus motivated
this action. With respect to the assertion that complainant's doctor
was contacted directly for medical updates by someone from the Command,
the record indicates that complainant was having hand surgery, and he
gave the doctor's name and number to the Commander for her to verify
the information. Complainant told her that she should call his doctor,
but the Commander herself denies calling. It appears that complainant
once again failed to follow leave instructions by requesting leave
prior to needing it. Complainant did, however, provide medical
documentation upon his return to work. However, we find that other
than complainant's own assertions that his doctor was called on five
occasions, the evidence does not establish that this occurred. Moreover,
if it did occur, the record shows that complainant gave permission for
someone from the agency to contact his doctor. We also determine that
there is no supporting evidence in the record that complainant was told
that he would be terminated upon his return from sick leave. Further,
the record shows that complainant's files were reviewed because he was
known to be the foreign education expert. Management wanted to change
its policy regarding the review of all foreign education transcripts and
documentations, and the person assigned to review the files was simply
looking for a pattern to justify a request for a change in policy.
The record also shows that complainant had access to a car when he
needed one, and the agency had agreed that complainant would be given
adequate time to complete his work. We find that there is no evidence
that suggests that discriminatory animus motivated these decisions.
Accordingly, we find that complainant failed to show that the agency's
nondiscriminatory reasons were pretext for discrimination.
Finally, it is well-settled that harassment based on an individual's
protected status is unlawful, if it is sufficiently patterned or
pervasive; usually, however, a single incident or a group of isolated
incidents will not be regarded as discriminatory harassment. Frye
v. Department of Labor, EEOC Request No. 05950152 (February 8, 1996);
Backo v. United States Postal Service, EEOC Request No. 05960227 (June
10, 1996); see also Meritor Savings Bank FSB v. Vinson, 477 U.S. 57
(1986). In the present case, we find that the incidents complained
of, even if considered in total, were not sufficiently severe or
pervasive to establish a hostile work environment. We find these
incidents to be general work related issues involving the requirement of
respectful conduct in the work place and complying with leave policies.
Additionally, we find the record shows that the Command investigated the
remarks that complainant alleged were made by a co-worker and while it
is entirely possible that the remarks were about him, the investigation
did not turn up any evidence that the remarks were directed to him.
The record evidence does not demonstrate that complainant's disability
and/or prior EEO activity were considered when addressing these issues.
With respect to complainant's contentions on appeal, the record shows that
the suspension was issued because it was the third disciplinary offense
that had been committed by complainant. While complainant contends that
the initial twelve day suspension must have been discriminatory because
it was ultimately reduced to two days, we disagree. A determination that
a twelve day suspension was not warranted does not, by itself, indicate
pretext. Further, the record also shows that the leave policy was
explained to coworkers as well as complainant, and there is no evidence
that anyone else violated the leave policy. Finally, with respect to
complainant being called names, we find that even if such conduct occurred
in the manner set forth by complainant, there is no persuasive evidence
that these actions were due to complainant's disability or previous EEO
activity or that they were severe or pervasive. Accordingly, we find
that the preponderance of the evidence of record does not establish that
discrimination occurred.
The agency's finding of no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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 (Z0408)
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
__08-14-2008________
Date
1 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
2 The Commission presumes, for purposes of analysis only and without
so finding, that complainant is an individual with a disability.
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0120061776
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
7
0120061776