0120092748
11-23-2009
Mark W. Mooney, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Mark W. Mooney,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120092748
Agency No. APHIS-2007-00571
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's May 12, 2009 final decision concerning an equal
employment opportunity (EEO) complaint claiming employment discrimination
in violation of the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
During the period at issue, complainant was employed as a Insect
Production Worker, WG-5031-03, at the agency's Plant Protection &
Quarantine, Animal & Plant Inspection Service (APHIS) in Sarasota,
Florida.
On July 30, 2007, complainant filed the instant formal complaint.
Therein, complainant alleged that the agency discriminated against him
on the basis of age (over 40) when management:
1. isolated him from co-workers and removed him from his rotating
assignments; and
2. his term NTE (not to exceed) appointment was not renewed.
The record reflects that between April 10, 2006 and April 12, 2007,
complainant performed a multitude of tasks on a weekly rotation schedule
and was then allowed to work at the screen washing machine. The record
further reflects that complainant worked in that capacity for one year,
and an agency mistake caused his first year of a four-year NTE contract
to expire without any renewal paperwork prepared. The record reflects
that the agency rehired complainant into a new thirteen-month NTE term
appointment. On April 2, 2007, however, APHIS gave complainant notice
that his one year term appointment would not be renewed.
At the conclusion of the investigation, complainant was provided
with a copy of the 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 May 12, 2009 final decision, the agency found no discrimination.
The agency found that the evidence in the record did not establish
that complainant was subjected to harassment based on age. The agency
further concluded that any harassment, even if it occurred as alleged
by complainant, was insufficiently severe or pervasive so as to create
a hostile work environment.
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").
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability or religion is
unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
A single incident or group of isolated incidents will generally not
be regarded as discriminatory harassment unless the conduct is severe.
Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether
the harassment is sufficiently severe to trigger a violation of Title
VII must be determined by looking at all of the circumstances, including
the frequency of the discriminatory conduct, its severity, whether it is
physically threatening or humiliating, or a mere offensive utterance, and
whether it unreasonably interferes with an employee's work performance.
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).
To establish a prima facie case of hostile environment harassment,
a complainant must show that: (1) he is a member of a 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.
Because of complainant's age, complainant satisfies the first element
of the prima facie case of harassment. However, the evidence of record
does not support a conclusion that complainant met his burden of proof
with regard to the remaining three elements of his prima facie case.
Regarding claim 1, complainant's supervisor (S1) denied isolating
complainant from his co-workers and removed him from his rotating
assignments. S1 stated that in 2007, complainant requested to be
separated from other employees and to work by himself. S1 stated that
during the period at issue, complainant "repeatedly had serious, loud,
heated verbal altercations with coworkers. At one of the counseling
sessions I had with the Complainant, I asked him what it would take for
him to get along in the workplace so he could complete his contract.
He said for me to put him somewhere and let him work by himself.
I granted his request and assigned him to the screen washing machine where
he could work alone. A short time after I granted his request, he told
me it was like a vacation and that he didn't have to deal with anyone.
He was placed at the screen washing machine entirely at his request."
Moreover, S1 stated that complainant "didn't want to work with anyone
and no one wanted to work with him."
Regarding claim 2, S1 stated that complainant was not terminated from
his position. Specifically, S1 stated that complainant "was hired as a
term employee on a one-year term appointment. He finished his one year
appointment and we chose not to renew his contract. His termination
was based on unacceptable conduct." S1 stated that complainant was
within a probationary period and he would have been able to work up to
four years under a term appointment, however, his appointment needed
to be extended every year, conditionally depending upon satisfactory
performance and conduct." S1 stated that if he could have let complainant
outside to work by himself, he would probably have kept him. S1 stated,
however, complainant's performance "was okay when he was alone. However,
we have a diverse workforce and some employees don't speak English as
their first language. The Complainant had problems working with anyone
different from himself."
S1 stated that starting mid-January 2007, management began having
serious problems with complainant and "his conduct continued to worsen.
[Complainant] was in a mental pushing match but I did not want to fire
him, I just wanted [complainant] to finish his term." S1 further stated
that he discussed the situation involving complainant with the West Area
Director (D1), also his supervisor, and he "said I was doing the right
thing. I also contacted [Eastern Region Human Resources Specialist]
and got guidance on not extending [complainant's] term appointment."
S1 stated that he gave complainant a notice of expiration of his
appointment on April 2, 2007. S1 stated "I told him he could work
until the expiration of his appointment which would give him a couple of
weeks to try to find another job. On April 3, 2007, he called in sick.
He later called and informed [Program Support Assistant] that he would not
be coming back to work." Furthermore, S1 stated that complainant's age
was not a factor in his determination not to renew his NTE appointment.
D1 stated that he was the concurring official concerning management's
decision not to renew complainant's NTE. Specifically, D1 stated
that complainant's term appointment was not renewed because "he could
not get along with other workers at the facility where he worked and
continued having problems with authority figures. From my knowledge of
the situation from his Supervisor, he was having major problems working
with others in the workplace and doing what he was told to do."
The Senior Employee Relations Specialist (Specialist) stated that
during the relevant time, complainant was not working under a four-year
term appointment. The Specialist further stated that term appointments
"are made for one year and can be extended each year, up to four years.
Every year it is the supervisor's decision as to whether the employee's
appointment should be renewed. The decision is based on things such as
operational needs, budget, performance, and/or conduct."
As an initial matter, we find that complainant, on appeal, has not
provided any persuasive argument regarding the propriety of the agency's
finding of no discrimination.
Complainant's claim of harassment fails because he has not established
that the incident cited, i.e., his alleged isolation from other workers,
was the result of his age or was sufficiently severe or pervasive such
that it unreasonably interfered with his work environment. Moreover,
regarding the agency's determination to not renew complainant's
"not to exceed" appointment, the agency has articulated legitimate
non-discriminatory reasons for its actions. Other than general assertions
that the agency's actions were based on discriminatory animus, complainant
has offered no evidence to establish pretext.
After a comprehensive review of the record, we find that the agency
correctly analyzed the facts of the case, and correctly concluded
that complainant had not been subjected to unlawful discrimination.
Therefore, we AFFIRM the agency's finding that complainant was not
subjected to discrimination as alleged.
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 (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
November 23, 2009
__________________
Date
2
0120092748
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120092748
7
0120092748