0120070459
02-05-2009
Lester Deberry, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Lester Deberry,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120070459
Agency No. CGC 05-0020
Hearing No. 120-2005-00798X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's January 22, 2005, final order 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 subjected
him to a hostile work environment and discriminated against him on
the bases of race (African-American), disability (major depression),
and reprisal for prior protected EEO activity when:
1. His work product was excessively scrutinized and criticized;1
2. Key tasks and responsibilities were removed from his duties;
3. His application for Workers Compensation was rejected;
4. He was denied meaningful job enhancement training; and
5. On February 5, 2005, he was terminated.2
The record reveals that complainant is a former Air Conditioning Equipment
Mechanic. Prior to his termination, he was employed at the Integrated
Support Command (ISC) in Portsmouth, Virginia. He claims he provided
a statement in the discrimination case of a coworker and after that his
work was scrutinized more carefully than other workers.3 On August 16,
2004, complainant left work after stating that he was feeling stressed.
He was diagnosed with "Major Depression, Single Episode, Severe with
delusions." He submitted medical documentation that indicated that he
was unable to continue working.4 Complainant was terminated from his
position effective February 5, 2005, because of his physical inability
to perform the essential duties of his position.
An EEOC Administrative Judge (AJ) issued a bench decision finding no
discrimination. The AJ found that even if complainant could establish
a prima facie case of discrimination as to all of his bases, the agency
had articulated legitimate nondiscriminatory reasons for its actions.
Namely, the agency maintained that none of complainant's duties were taken
away from him and no one had any knowledge of complainant ever requesting
training. The agency also maintained that complainant was terminated
because he submitted a note from his physician that indicated that he
could no longer perform the duties of his position and that he could no
longer work for the ISC Portsmouth. The AJ found that complainant failed
to demonstrate that he was subjected to a hostile work environment and
failed to show that the agency's legitimate nondiscriminatory reasons
were pretext for discrimination. The agency fully implemented the AJ's
finding of no discrimination.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final order
finding no discrimination. First, the Commission finds that the AJ's
issuance of a decision without a hearing was appropriate as there are
no material facts at issue. Next, we agree that the agency articulated
legitimate nondiscriminatory reasons for its actions. The agency explained
that it was making changes to become more efficient. Part of the process
was reviewing the work of employees to assess how they were doing and
how they could do things better. This included group discussions and
timed assignments. With respect to issue #1, the agency maintained
that complainant's work was not excessively scrutinized and criticized.
The record supports this. Complainant's supervisor indicated that he
expected all of his workers to perform in an efficient but professional
manner and to that end, all employees' work was reviewed.
With respect to issue #2, the agency indicated that no key tasks and
responsibilities were removed from complainant's duties. Complainant
however alleged that tasks were given to another person so that he
would not be promoted.5 Notwithstanding complainant's statement,
we find that the tasks described by complainant were collateral duty
tasks and not related to his primary position. With respect to issue
#3, the agency indicated that it did not reject complainant's Workers
Compensation application. The agency indicated that it did not have the
authority to reject the application because it's only obligation was to
ensure that the application was fully completed. The agency maintained
that complainant's application was rejected by the Office of Worker's
Compensation because complainant indicated that his disability stemmed
from his service overseas. We find the record supports this.
Regarding, issue #4, the agency indicated that complainant was not
denied training. Again, the evidence supports this. The record shows
that complainant requested annual training for May 24-28, 2004, and
June 7-19, 2004. He attended the May training but the June training was
rescheduled due to a work project. While complainant maintains that his
training should not have been rescheduled, according to his own statement,
he completed his annual training from June 14-25, 2004. Accordingly,
complainant was not denied training. Finally, with respect to issue #5,
the agency found that complainant was terminated because he submitted a
note from his physician that indicated that he could no longer perform
the duties of his position and that he could no longer work for the
ISC Portsmouth. We find the record also supports this. We note that
other than complainant's own conclusory assertions no evidence has been
provided to show that he was treated more harshly than similarly situated
employees not in his protected groups, that duties were taken away, or
that he was not provided training. Therefore, we agree that complainant
failed to show that the agency's nondiscriminatory reasons were pretext
Further, with regard to complainant's claim that he was subjected to a
hostile work environment, the Commission finds that he has not shown that
the incidents complained of even when viewed together as a whole were
so severe or pervasive as to constitute a hostile work environment. See
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997), citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)
(harassment is actionable if it is sufficiently severe or pervasive to
alter the conditions of the complainant's employment).
Finally, with respect to the termination, claims alleging discrimination
brought by veterans preference eligible employees are generally processed
as mixed-case complaints. See 29 C.F.R. � 1614.302(a) & (d); 5 C.F.R. �
752.401 (a)(1). Nevertheless, the Commission may properly assume initial
jurisdiction of such an issue (i.e., an action which is properly within
the jurisdiction of the Merit Systems Protection Board) when, for example,
the allegation is so firmly enmeshed in the EEO process that it would
unduly delay justice and create unnecessary procedural complications to
remand it to the MSPB. See Cullors v. Department of Defense, EEOC Appeal
No. 0120041560 (June 27, 2006)), citing, Richardson v. Department of
Veterans Affairs, EEOC Appeal Nos. 01982915, 01984977 (Nov. 5, 2001).
On the merits of the case at hand, we find the evidence shows that
complainant was terminated after he submitted a note from his physician
indicating that he could no longer work for the ISC Portsmouth and,
even if we view this as a request for reasonable accommodation, we agree
with the AJ that reassignment away from a particular supervisor is not a
reasonable accommodation. Even if we assume arguendo that reassignment
was an option, we find that complainant failed to identify any other jobs
to which he could have been reassigned. We find that complainant has not
shown that discriminatory animus was shown with regard to his termination.
Accordingly, the preponderance of the record evidence does not establish
that discrimination occurred. The agency's FAD is hereby 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 77960,
Washington, D.C. 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 (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 (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
February 5, 2009
__________________
Date
1 The record reveals that complainant was counseled on at least two
occasions. One incident occurred when he failed to troubleshoot a
maintenance problem on June 30, 2004, and again in August 2004, when he
left the vacuum cleaner running and it started a fire.
2 The AJ found that the termination issue was a mixed case and could
have been filed directly with the Merit Systems Protection Board, MSPB.
The AJ found that complainant's termination claim was untimely and
was not properly brought before the Commission. He also dismissed the
request for reasonable accommodation because it was part of the mixed
case. In February 2005, complainant requested disability retirement.
His request was approved.
3 Complainant served overseas with the military from May 27, 2003 until
September 15, 2003. Complainant, while on military leave, submitted a
statement in his coworker's discrimination case. Complainant returned
to work on January 15, 2004.
4 Complainant's medical documentation indicated that " this renders
him unable to work at this time and patients with this problem tend
to respond slowly. I would anticipate he would likely be out of work
for at least two months, perhaps three before it would be safe for
him to return. In fact, there is some possibility that he could not
return to that particular job with the same people without the risk
of activating the paranoia again. [Complainant] is currently taking
medicines in the hospital." On December 20, 2004, complainant submitted
a letter from his treating physician which recommended that complainant
apply for disability retirement because of the chronic nature of his
condition. The doctor indicated that even after intensive treatment, it
is impossible for him to return to his previous employment and location.
Complainant applied for disability retirement two days after being served
with the proposed removal letter. Complainant's disability retirement
was approved on May 5, 2005.
5 Complainant does not provide any information as to when the tasks
were taken away from him.
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0120070459
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036