01992124
03-09-2000
Lawrence A. Wojdak, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Lawrence A. Wojdak v. Department of the Treasury
01992124
March 9, 2000
Lawrence A. Wojdak, )
Complainant, ) Appeal No. 01992124
) Agency No. 94-2122R
v. )
)
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
______________________________)
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from the final agency decision (FAD)
concerning his allegation that the agency discriminated against him
on the bases of his mental disability (bipolar affective disorder and
depression), and in reprisal for his prior EEO activity, in violation
of �501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791
et seq.; and Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C.� 2000e et seq. The appeal is accepted in accordance with the
provisions of EEOC Order No. 960.001.<1> For the reasons set forth below,
we affirm the agency's FAD.
ISSUE PRESENTED
The issue presented is whether complainant proved that he was
discriminated against on the bases enumerated above when the agency took
several allegedly harassing actions which culminated in his termination
from agency employment on January 15, 1993.
BACKGROUND
Complainant filed a formal EEO complaint on January 29, 1994, in which
he alleged that the agency discriminated against him based on his mental
disability when he was allegedly harassed and subsequently terminated.
Following an investigation of this complaint, complainant requested an
immediate final agency decision. Thereafter, the agency issued such a
decision on January 20, 1995, in which it determined that complainant
had not been discriminated against. In appellate decision No. 01952440
(March 27, 1997), the Commission's Office of Federal Operations remanded
the matter for a supplemental investigation in order to address whether
complainant's termination was motivated by retaliation for his opposition
to the alleged harassment and to obtain additional medical documentation
concerning his impairment. After conducting a supplemental investigation
which produced the requested additional documentation, the agency again
issued a final decision (FAD2) finding no discrimination. It is from
this decision that complainant now appeals.<2>
In October 1992, complainant was hired for the full-time seasonal position
of Taxpayer Service Representative, GS-962-05, on a Schedule B appointment
as a mentally restored individual.<3> Complainant served in this position
for approximately three months, and was issued a Notice of Termination
(the Notice) on January 15, 1993. The Notice states that complainant
was terminated during his trial period for the following reasons:
You have caused dissension and discord in the workplace by writing
insulting and inflammatory letters to the District Director and to
the Chief, Taxpayer Service, regarding other management officials.
You also left your worksite on January 14, 1993, at 9:00 a.m. without
notification or approval from your manager.
The Notice was issued by the Chief, Taxpayer Service Division (the
Responsible Official, RO), who averred that complainant had written
"numerous insulting and inflammatory letters" which contained "unwarranted
and untrue accusations against numerous management officials." The record
indicates that the RO was the same official who had earlier made the
determination to hire complainant. The supplemented record contains
approximately 25 examples of such letters, written by complainant
during the time period from November 30, 1992 through January 15,
1993. A review of these letters indicates that they contain a number
of accusations regarding events which had occurred in the workplace and
numerous statements denigrating various aspects of both the performance
and behavior of complainant's immediate supervisor and other agency
officials with whom complainant dealt in the course of his tenure as an
employee of the agency. The letters also contain many questions which
are phrased in an accusatory manner.
In one of these letters, which was sent to the RO and dated January
11, 1993, complainant set forth a number of accusations and stated in
conclusion that he believed the RO was in "reckless disregard" of the
Rehabilitation Act, Title VII, and the Americans With Disabilities Act
of 1990. The letter states further, "Subsequently, I am exhausting all
administrative remedies available under EEOC." Another of these letters
states, "I can see no excuse for your reckless disregard of the law,
nor your indifference to my mental anguish." In that letter, complainant
further challenged the RO's knowledge, technical training and authority
in making various management decisions.
In her supplemental statement, the RO elaborated concerning the basis
for her decision to terminate complainant's appointment on January 15,
1993. She stated that she decided to terminate complainant during the
week of January 11th, when it appeared that, although she had agreed to
transfer him to another group, he was not going to perform the duties for
which he was hired but instead intended to continue to cause discord in
the workplace and harass and insult management officials. She further
indicated that complainant refused to follow the directions of his
supervisor<4> and was creating dissension and discord in the workplace,
causing other employees to express concern about his behavior.<5> In
response to complainant's assertion that he was mentally anguished,
she indicated that in her dealings with complainant, she never saw
any signs of such anguish, but nonetheless urged him to use Employee
Assistance Program services if such was the case. She also averred that
complainant's statement about his intent to exhaust EEOC procedures
played no role in her decision to terminate him because she was fully
aware that whether he was employed or not would be irrelevant to the
continuation of the EEO process.
ANALYSIS AND FINDINGS
Proceeding to the merits of complainant's appeal, initially, we note
our agreement with the agency's determination that the medical evidence
established that complainant has a record of a mental disability and
that he was qualified for the position at issue. See 29 C.F.R. �1630.2(g)
and �1630.2(m).<6> Thus, we find that complainant has demonstrated that
he meets the threshold definition required to secure Rehabilitation Act
coverage.
Next, we observe that many of complainant's allegations herein constitute
claims of disability based harassment. The Commission notes that
harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful if it is sufficiently patterned or pervasive. McKinney v. Dole,
765 F.2d 1129, 1138-39 (D.C. Cir. 1985). The conduct in question is
evaluated from the standpoint of a reasonable person, taking into
account the particular context in which it occurred. See Highlander
v. K.F.C. National Management Co., 805 F.2d 644 (6th Cir. 1986).
Upon review of the record in this matter, however, we find that
complainant has failed to establish that any of the actions he complained
of were motivated by a discriminatory animus based on his disability. With
regard to each action, the agency provided a nondiscriminatory explanation
as discussed below, that complainant failed to adequately challenge.
Moreover, when viewed in their entirety, these incidents are insufficient
to establish a pattern of harassment. We address the allegations in turn
below.
Allegations 1, 2, and 3- Alleged Unauthorized Disclosure of Information
Complainant alleged that on October 19, 1992, his coworkers were informed
by a Personnel Specialist during the new employee orientation that
complainant had been appointed under a Schedule B hiring authority<7>
and were thereby given confidential information regarding his medical
history. (Allegation 1) The agency's Personnel Specialist however,
denied that she referred publicly at any time to complainant's Schedule
B appointment letter, which was already on file. She averred that,
as was her customary manner, she knelt down and spoke individually to
complainant in order to explain to him that he would be receiving a
different packet of information than other employees because of the
temporary nature of his appointment.
Although complainant also asserted that he was discriminatorily deprived
of enrollment information for employment benefits (Allegation 2),
complainant acknowledged in writing in his orientation paperwork that he
had been informed that he was ineligible for retirement, life, and health
insurance benefits. Complainant also alleged that his right to privacy
was violated when, on November 27, 1992, his supervisor forced him to
discuss his tax liability in her office with the door open (Allegation
3). The supervisor indicated that in informing complainant that he
would need to resolve his outstanding tax liability, she made no inquiry
regarding the details of complainant's medical condition. She stated that
she told complainant not to close the door because there were no other
offices within hearing distance and she did not feel comfortable meeting
with a male employee behind a closed door. There is no indication in the
record that any of the information complainant voluntarily offered to
her was disclosed to any other employee. Complainant also later agreed
to permit this official to assist him in resolving his tax liability.
None of the foregoing information presents a sufficient basis from which
to conclude that unauthorized inquiries or disclosures of complainant's
medical information were made by agency officials.
Allegations 4-7- Workplace Harassment
Complainant asserts that on December 3, 1993, his supervisor interrupted
his conversation with a coworker demanding to know if there was a problem
and then followed him into the supply room and asked if he were shredding
documents in order to harass him (Allegation 4). The supervisor stated
that she interrupted the conversation because the other employee was
responsible at that time for taking incoming taxpayer inquiries and
should not have been conversing with complainant. She indicated that
she had authorized complainant to spend an hour cleaning and organizing
his desk, but later noticed on her way down the hall that complainant
instead appeared to be cleaning and organizing the supply room.
Complainant asserted that on December 5, 1992, his supervisor gave him
a blank annual rating form and stated that "I just wanted you to know
this"(Allegation 5). The Supervisor denies preparing such a form since
complainant had not been employed long enough to have his performance
rated. The RO indicated that complainant's receipt of this form was the
result of a personnel office computer error.
Allegation 6 involves the insistence by complainant's supervisor that
he change his completion of his Taxpayer Service Activity Reports to
reflect time spent in union activities. There is no indication from
the record that this was in any respect an inappropriate or harassing
request. Allegation 7 concerns the action of complainant's supervisor
in handing him a note indicating that he should call an employee in
the Criminal Investigation Division (CID). Complainant asserts that she
was responsible for his inability to reach the caller. The supervisor
indicates, however, without evidence to the contrary, that she was merely
forwarding a message to complainant and had no further knowledge of the
matter.
Allegation 8-Termination of Appointment
With regard to complainant's January 15, 1993 termination, the record
does not contain evidence sufficient to present an inference that it was
motivated by disability discrimination. In fact, complainant's employment
was terminated by the RO who had originally been responsible for hiring
him under the Schedule B appointment and therefore had an interest in
seeing him succeed at the agency. Moreover, complainant does not indicate,
nor does the agency infer, that the conduct for which he was terminated
was, in any respect, caused by manifestations of his disability.
We find, however, that complainant has clearly presented a prima
facie case of retaliation for his participation in the EEO process in
his termination by the RO. See Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd.,
545 F.2d 222 (1st Cir. 1976). The RO averred that she became aware of
complainant's initial contact with the EEO Officer in late December 1992
or early January 1993, and made the decision to terminate complainant
within such a period of time in which retaliatory motive can be
inferred.
The record amply reveals testimony as well as documentary evidence,
however, indicating that complainant was terminated not because of his
pursuit of the EEO process or his opposition to alleged Rehabilitation
Act violations, but because his disruptive conduct in the workplace
impeded him from the performance of his duties, because he refused to
follow his supervisor's directions and because he left the workplace
without appropriate notification. We reach this conclusion based on a
careful review of complainant's conduct which included both disruptive
and insubordinate actions in the work environment during his brief
tenure. After this review, we find the RO's statement that her actions
were based on these acts and their effect on complainant's performance
rather than on complainant's allusions to Rehabilitation Act violations
to be a credible one.
In an attempt to prove pretext, complainant challenges the veracity
of numerous agency officials, including his supervisor and the RO.
He further asserts that additional witness testimony ought to have been
taken. We observe, however, that complainant failed on two occasions to
request an administrative hearing at which he could have attempted to
present additional witnesses in this matter. Our review of the expanded
record, however, indicates that there is sufficient evidence upon which
to base our determination herein. In every instance, complainant has
failed to meet his burden of proof of discriminatory motivation in the
challenged agency actions by a preponderance of the evidence.
CONCLUSION
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM the agency's FAD finding no discrimination in
complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
March 9, 2000 Frances M. Hart
DATE Executive Officer
Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2 Complainant's appeal was initially docketed as EEOC Appeal No.
01982137. The Office of Federal Operations administratively closed this
appeal, however, in response to correspondence from complainant which
appeared to indicate that he had filed a civil action in a U.S. District
Court. Based upon additional communications from complainant, however,
which indicate that no such civil action has been filed, we have
redocketed complainant's appeal under the aforementioned docket number
in order to address it on its merits herein.
3In an April 7, 1992 medical evaluation presented to the agency in
connection with complainant's application for the Schedule B appointment
and a February 22, 1993 medical evaluation, two psychiatrists noted
complainant's 1984 diagnosis of bipolar affective disorder and a 1988
diagnosis of depression. Complainant was hospitalized for his bipolar
affective disorder in October 1984 and for depression in 1988 and 1992.
4Complainant's supervisor cited an incident in her affidavit in
which complainant refused to complete a taxpayer telephone inquiry,
notwithstanding a direct order from her to return to the telephone and
finish the call.
5As an example, she cited complainant's actions during the week of January
11th, shortly after she had agreed to transfer him to another work group
in accordance with his wishes. She noted that during this time, instead
of performing the duties for which he was hired, complainant set himself
up in a small conference room by the union office, affixed a handmade sign
to the door to the effect that an EEO proceeding was in progress, and sent
messages to managers asking them to have various employees report to him
in the conference room as witnesses in a preliminary proceeding. Copies
of these messages from complainant are contained in the record.
6The Rehabilitation Act was amended in 1992 to apply the standards in the
Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: WWW.EEOC.GOV.
7The agency indicates, without contradiction, that the appointment of
mentally restored individuals was only one of various forms of appointment
made under Schedule B and was in no respect synonymous with a mental
disability.