0120072592
07-10-2009
Lee Kaarup, Complainant, v. Mary E. Peters, Secretary, Department of Transportation, Agency.
Lee Kaarup,
Complainant,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120072592
Agency No. 200620497FAA01
DECISION
On May 10, 2007, complainant filed an appeal from the agency's April 12,
2007 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. The appeal is accepted 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
At the time of events giving rise to this complaint, complainant worked as
an Air Traffic Controller at the agency's Deer Valley Air Traffic Control
Tower in Phoenix, Arizona. Complainant asserts that on September 2,
2005, and April 21, 2006, he was subjected to two acts of violence by
his supervisor (S1) regarding near mid-air collisions. Complainant also
alleged that, despite his complaints, he was scheduled to work with S1.
On April 28, 2006, complainant contacted an EEO Counselor and told the
EEO Counselor that S1 discriminated against him on the basis of his
age, because he was the youngest Air Traffic Controller.1 In early
May 2006, complainant was called in to see his second level supervisor
(S2). There is no dispute in the record that during this meeting,
S2 questioned complainant regarding his contact with an EEO Counselor,
asked why he did not come to him first with his concerns, and that he
would appreciate it if, in the future, he used the chain of command or
negotiated grievance process.
On June 21, 2006, complainant informed S2 that he would need to be absent
from work until June 27, 2006 because he was taking a disqualifying
medication because of back pain. S2 informed complainant that he was
excused from his operational duties, but did need to come in to speak
with an investigator about another matter. Complainant refused, and
was placed on AWOL. Upon complainant's return to work, he submitted
medical documentation supporting his absence, and his pay statement was
corrected.
Complainant states that on August 10, 2006, while complainant was in
the break room of another building, he was scolded by S2 and ordered
back to his building. Complainant alleged that S2 then made a death
threat towards complainant. Finally, complainant alleged that the agency
delayed in processing his Voluntary Leave Transfer Program application.
On June 30, 2006, complainant filed an EEO complaint alleging that he
was subjected to reprisal for prior protected EEO activity when:
1. his work shifts were scheduled so that he was required to work
with a management official following September 2005 and April 2006
incidents;
2. a management official berated him during a May 2006 meeting;
3. a management official charged him with AWOL in June 2006;
4. a management official threatened him in August 2006;
5. a management official left a harassing message on his home
telephone, charged him with LWOP, and falsified his leave information
in August 2006; and
6. a management official failed to promptly process his application
for admission into the agency's Voluntary Leave Transfer Program (VLTP).
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).
In its decision, the agency concluded that complainant failed to establish
a prima facie case of reprisal with respect to his first claim because
it occurred prior to his contact with an EEO Counselor. The agency
also concluded, however, that complainant failed to establish that the
remaining claims were motivated by complainant's prior EEO activity.
Accordingly, the decision concluded that complainant did not prove that
he was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the he was subject to retaliation
because S2 berated him for contacting an EEO Counselor in May 2006.
Complainant also contends that, as a result of his EEO activity,
S2 placed him on AWOL and later made a death threat against him; the
police report from this incident documents the investigator's opinion
that S2 was hostile during the interview. The agency did not respond
to complainant's appeal.
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").
The record reveals that on April 28, 2006, complainant contacted an
EEO Counselor about an alleged act of violence by S1. On May 5, 2006,
S2 had a meeting with complainant wherein S2 essentially criticized
complainant for contacting an EEO Counselor instead of contacting
S2 first, or proceeding through the negotiated grievance procedure.
S2 averred in his affidavit that his suggestions to complainant were
just about "proper protocol."
The Commission has held that the actions of a supervisor may be per se
reprisal where he or she intimidates an employee and interferes with the
employee's EEO activity in any manner. See Binseel v. Department of the
Army, EEOC Request No. 05970584 (October 8, 1998); Yubuki v. Department
of the Army, EEOC Request No. 05920778 (June 4, 1993). We find that
S2's comments to complainant constituted a per se violation of Title
VII and the Commission's regulations by interfering with his rights to
pursue remedies for violations of equal employment opportunity laws.
42 U.S.C. �2000e-3(a); 29 C.F.R. � 1614.101(b); see Burlington Northern
and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). Complainant states
that he intended to contact the EEO Counselor about age discrimination.
We note that complainant could not have prevailed on this underlying
claim because he was not over the age of 40, and thus not in the class
of persons protected by the statute. However, a person is protected
against retaliation for opposing perceived discrimination if he or she
had a reasonable and good faith belief that the opposed practices were
unlawful. Thus, it is well-settled that a violation of the retaliation
provision can be found whether or not the challenged practice ultimately
is found to be unlawful. EEOC Compliance Manual, Section 8: Retaliation,
� 8-II.B.3.b, page 8-8 (May 20, 1998).
With respect to complainant's remaining claim of harassment, in order
to establish a claim of harassment based on race, sex, disability, age,
or reprisal, complainant must show that: (1) he is a member of the
statutorily protected class; (2) he was subjected to harassment in the
form of unwelcome verbal or physical conduct involving the protected
class; (3) the harassment complained of was based on the statutorily
protected class; and (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering
with the work environment and/or creating an intimidating, hostile, or
offensive work environment. Humphrey v. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11. The
harasser's conduct should be evaluated from the objective viewpoint of a
reasonable person in the victim's circumstances. Enforcement Guidance on
Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
Further, the incidents must have been "sufficiently severe and pervasive
to alter the conditions of complainant's employment and create an abusive
working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75
(1998). In the case of harassment by a supervisor, complainant must
also show that there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
After a review of the record, we find the preponderance of the evidence
does not support complainant's allegation that he was subjected to
a hostile work environment because complainant failed to establish
that the remaining adverse actions were causally related to his
prior protected activity. Complainant's first allegation occurred
prior to his EEO activity, and is clearly unrelated. Complainant was
placed on AWOL in June 2006, because of his failure to provide medical
support for his week long absence prior to the end of the pay period.
The record supports the agency's decision to impose this discipline.
Ultimately, when complainant supplied the medical documentation, his
time and attendance record was amended to indicate sick leave. Finally,
with respect to the alleged death threat made by S2 in August 2006,
while complainant was on break, we note that there is evidence in the
record that complainant, S1, and S2 had a difficult relationship even
prior to the EEO activity. Complainant failed to provide persuasive
evidence that this encounter was related to his EEO activity as opposed
to an ongoing personality dispute. Complainant did not argue the merits
of the remaining incidents of alleged harassment on appeal, and we find
no persuasive evidence in the record suggesting retaliation.
Relief
As part of his requested relief, complainant has requested that the
Commission award him compensatory damages. However, complainant's
protected activity, and his subsequent reprisal claim, both fell under
the ADEA. The Commission has previously held that neither attorney's
fees nor compensatory damages are available in connection with a finding
of discrimination under the ADEA. Edward R. Falks v. Department of the
Treasury, EEOC Request No. 05960250 (September 5, 1996). Accordingly,
the relief available is limited to the corrective remedies set forth in
the Order of the Commission, below.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM in part
and REVERSE in part the agency's final action.
ORDER (C0900)
The agency is ORDERED to take the following remedial action:
1. Within sixty (60) calendar days of the date on which this decision
becomes final, the agency shall provide 8 hours of EEO training regarding
the prohibition against retaliation for protected EEO activity to the
individual identified as S2 in this decision;
2. The agency shall consider taking disciplinary action against
the agency official found to have discriminated against complainant.
The Commission does not consider training to constitute disciplinary
action. The agency shall report its decision. 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; and
3. The agency shall post a notice in accordance with the paragraph
below.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Deer Valley Air Traffic Control
Tower 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 (K1208)
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 77960, Washington,
DC 20013. 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
July 10, 2009
Date
1 Complainant avers that at that time, the EEO Counselor suggested to
him to allege reprisal, but he claims he did not understand why she
told him that. The actual EEO Report erroneously indicates complainant
alleged discrimination on the basis of sex (female).
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0120072592
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120072592