01a44538
04-26-2005
Marvin Eason, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Marvin Eason v. Department of the Navy
01A44538
April 26, 2005
.
Marvin Eason,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A44538
Agency No. 03-61414-007
Hearing No. 120-2004-00066X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
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.
Complainant, a Police Officer, GS-083-05, at the agency's Virginia Beach
Precinct, Naval Amphibious Base Little Creek in Virginia Beach, Virginia,
filed a formal EEO complaint on November 4, 2000. Therein, complainant
claimed that he was the victim of unlawful employment discrimination on
the bases of race (African-American), disability (wrist) and in reprisal
for prior EEO activity.
Complainant claimed that he suffers from an injured wrist and
hypertension. The record reveals that complainant claimed that as a
result of hypertension, he cannot do anything that requires a considerable
exertion; and that his injured wrist limits him to no heavy lifting and
no prolonged or mandatory writing.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). The agency thereafter filed a Motion to Dismiss or in the
alternative, an Agency Motion for Decision Without a Hearing.
In its motion, the agency framed complainant's claims as follows:
1. complainant was subjected to disparate treatment regarding his time
and attendance, by being held to stricter requirements for the use of
administrative leave than other employees;
2. during September 2002, he did not receive an award or recognition
for his participation in the apprehension of illegal immigrants;
3a. on December 20, 2002, a former co-worker removed his medical
documentation from the acting supervisor's office in violation of the
Privacy Act;
3b. on December 24, 2002, he was assigned to check identification cards
at the Morale, Welfare, and Recreation Gymnasium and made to check in
daily with the Watch Commander;
3c. on December 27, 2002, he was questioned about his light duty
restrictions;
4a. on March 17, 2003, he was not allowed to review forms related to
his light duty;
4b. in May 2003, a representative of the Human Resources Office engaged
in ongoing reprisal by contacting complainant's doctor regarding his
medical restrictions; and
4c. in May 2003, a representative of the Human Resources Office engaged
in further acts of reprisal by attempting to obtain from him documentation
regarding his medical restrictions.
The agency further requested that the AJ issue a decision without a
hearing, finding no discrimination. Regarding complainant's disability
claim, the agency argued that complainant was not an individual with a
disability, because he produced no evidence showing that his conditions
substantially impaired any major life activity. The agency argued that
since 2001, complainant has had hypertension, and that he cannot have
prolonged exposure to sun and must limit strenuous physical activity
such as bicycling and running. The agency also argued that in 1997,
complainant sustained a wrist injury, and that at the time of the
investigation, he could not perform the essential duties of his position,
but was expected to improve. The agency argued that since May 2002,
complainant has performed light duty work.<1>
Regarding complainant's reprisal claim, the agency found complainant
failed to establish an inference of discrimination because he failed
to establish a causal connection between his prior EEO activity and
the actions as issue. The agency argued that management either had no
knowledge or �at best some vague impression� of complainant's prior EEO
activity, and that the undisputed factual circumstances surrounding the
alleged actions were too remote to infer retaliation.<2>
Regarding claim (1), the agency noted that complainant's former
first-level Supervisor (S1) testified that complainant's claim was
�false.� S1 stated that all employees received equal treatment on this
matter; and that when a party requested leave, it was granted. S1 stated
that complainant was the only employee involved in different EEO cases,
and would leave the office to attend to EEO matters and return to the
office a few hours later; and that sometimes he �wouldn't even show back
up.� S1 stated that when complainant's absences became excessive, he
contacted a timekeeper concerning the agency's leave policy. S1 stated
that the timekeeper informed him that if complainant planned to be away
from his work area for longer than an hour, he needed to provide adequate
documentation verifying his absence.
The agency also noted that S2 testified that he was approached by S1,
the timekeeper and complainant's fourth-level Supervisor (S4) regarding
a �pre-action� on complainant for failure to provide documentation of
his whereabouts on September 20 and 23, 2002. S2 determined not to
conduct a �pre-action� on complainant because he �didn't see specific
dates.� Furthermore, S2 stated that around October 7, 2002, he learned
that complainant did not go to the EEO office on September 23, 2002,
but took no action.
Regarding claim (2), the agency noted that S1 stated that he �did not
tell anybody about getting an award.� S1 further testified that on
the day of the apprehension that prompted the issuance of a citation to
an agency employee, S1 noted the false identification of the illegal
immigrants and requested that complainant call security, which then
detained the illegal immigrants. S1 stated that he was unaware that he
would be receiving a letter of commendation for the apprehension, and that
he had no involvement in complainant not receiving any recognition or an
award for his participation in the same apprehension. In its motion,
the agency argues that complainant's involvement in the apprehension of
the illegal aliens was �limited.�
Regarding claim (3a), the agency noted that a former Security Assistant
testified that on December 20, 2002, she reminded the Acting Supervisor
that he needed to turn in the time sheets that morning, and informed
him that she would fax the time sheets because the Acting Supervisor
was preparing to leave, and the former Security Assistant stated that
she would be the only civilian working. The former Security Assistant
further testified that she was in the former Acting Supervisor's office
when complainant came in with medical documentation following his doctor's
visit; and that she called the timekeeper to inform her that complainant
had just arrived with �some paperwork, and the time had to be changed on
his time sheets. The time was changed, and I faxed it down to [Civilian
Timekeeper] and put it back where it belonged.� Furthermore the former
Security Assistant testified that she had routinely faxed documents to
the timekeeper.
The agency also noted in his fact finding testimony, the former Acting
Supervisor testified that the former Security Assistant �usually takes
things for timekeeping and fills in timekeeping records.� The former
Acting Supervisor further testified that the former Security Assistant
�sometimes� helped him out with business matters.
Regarding claim(3b), the agency noted that S4 testified that he assigned
complainant �to the gym to check ID cards until I could get more
clarification on his restrictions.� With regard to complainant's claim
that he was instructed to check in daily with the Watch Commander, the S4
stated that he determined that complainant should check in daily with
the Watch Commander based on �accountability� purposes. Furthermore,
the S4 further stated �it would be more convenient for [Complainant]
to check in with the Watch Commander, rather than try to get - - check
in with somebody that might not be there.�
Regarding claim (3c), the agency noted that S4 testified that on December
27, 2002, he questioned complainant about his light duty restrictions
because S4 was attempting to get some type of �feel� regarding the
nature of the restrictions, because it was Christmas week. The S4
further stated that he received complainant's medical documentation
from a timekeeper, and that a review of the documentation indicated that
complainant was not to have �prolonged writing.� The S4 stated that he
questioned complainant about the definition of �prolonged writing� and
that complainant �basically told me that the duties he was doing down
at the Pass Office would not interfere with his writing restrictions.
And based upon that conversation, and not having a doctor's note to clear
it, I had basically made the call to send him back to the Pass Office.�
Regarding claim (4a), the agency noted that complainant's current
first-level Supervisor (CS) testified that on March 17, 2003, he gave
the medical information release authorization form to complainant
for complainant's signature, along with other medical documentation.
The CS further stated that complainant refused to sign these documents.
CS called the Human Resources office requested guidance on how to proceed;
and that the Human Resources office requested that CS send the documents
back to Human Resources so that it could �regroup.� The CS stated that
he �left all of the medical part of the documentation with [the Human
Resources office] and took the letter back that had not been signed,
the part that was to be signed.� The CS stated �I believe it was the
very next day,� when he returned the March 17, 2003 letter concerning
the medical information release authorization to complainant.
Regarding claim (4b), the agency noted that a Labor Relations Specialist
(Specialist) stated that because complainant's Occupational Health
Physician (OP) did not give her complainant's return to work date,
she contacted the OP to obtain additional medical documentation
for complainant's file. During the telephone conversation, the OP
informed her that he would fax complainant's medical documentation.
The Specialist stated that the medical documentation OP faxed to her
stated that complainant �was able to perform �something' of all the
functional requirements.� The Specialist stated that because the OP's
statement was �unclear,� she phoned the OP for clarification.
The agency also noted in his affidavit, the OP stated that he recalled
calling the Labor Relations Specialist �because I wanted to know what
specific things she needed to know.� The OP further stated that he
never became upset with the Specialist because of her questions and her
insistence that he tell her something other than what he had already
told her. Furthermore, the OP stated that the Specialist did not attempt
to force him to make a decision that he knew was not medically proper;
and that he never told complainant that the Specialist tried to get him
to make a decision that he knew was not medically proper.
Regarding claim (4c), the agency noted that the Specialist stated that
management is required to assure that it does not place an employee in a
position that will cause the employee �any further harm.� The Specialist
further stated �because we have these restrictions that were placed on
[complainant] by his doctor for his blood pressure and then his hand
problem, our concerns are to make sure we are staying on top of that,
we are not doing anything that would violate doctors' orders, etc.�
The Specialist stated that management has to assure that complainant
is on the �proper light duty.� With respect to complainant's claim
that there are other employees who have been on light duty who have
had to go through the type of scrutiny that he has experienced, the
Specialist stated �it is kind of hard to address that without specific
people and who he is referring to.� The Specialist stated that the
agency employs the same procedures for all of its employees who are on
medical accommodation. The Specialist stated �we have to follow up to
make sure that the documentation we have is current and whether or not
they have recuperated from what was causing their restrictions and all
of those things are done through requesting medical documentation.� The
Specialist stated that it is the standard agency procedure in obtaining
medical documentation. Furthermore, the Specialist stated that she did
not harass complainant and that she has never spoken with complainant.
On May 4, 2004, the AJ issued a decision without a hearing, finding
no discrimination. The AJ determined that the agency properly set
forth the undisputed facts and applicable law in its "Agency Motion for
Decision Without A Hearing," incorporated the Motion in her decision,
and found no discrimination. The AJ further determined that complainant
failed to produce evidence establishing any genuine issues of material
fact sufficient that the agency's articulated reasons for not selecting
him were a pretext for discriminatory animus. In addition, the AJ
found that complainant failed to establish that he was subjected to
harassment. Specifically, the AJ found that the alleged harassment was
not sufficiently severe or pervasive to create a hostile environment.
The agency implemented the AJ's decision in a final order dated June
25, 2004. It is this decision that is the subject of the instant appeal.
On appeal, complainant, through his attorney, states that the AJ's
finding of no discrimination �is baseless and simply ignores the evidence
presented.� Complainant further states that the AJ made �no effort
to analyze the allegations or even indicate a basic familiarity with
the facts of the case.� Complainant disputes the agency's framing of
his claims. Complainant states that he has been subjected to a pattern
of harassment and disparate treatment based on his race, disability and
prior EEO activity.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is �genuine� if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-323 (1986); Oliver v. Digital
Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is
�material� if it has the potential to affect the outcome of a case.
If a case can only be resolved by weighing conflicting evidence, summary
judgment is not appropriate. In the context of an administrative
proceeding, an AJ may properly consider summary judgment only upon a
determination that the record has been adequately developed for summary
disposition.
Disparate Treatment
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Commission finds that the agency articulated a legitimate,
nondiscriminatory reason for its actions. Complainant has not shown that
the reasons articulated for its actions were a pretext for discrimination.
Harassment
The Commission notes that complainant, on appeal, disputed the agency's
framing of his claims; and argued that his claims taken together raise
a claim of discriminatory harassment. By framing issues in a complaint
as individual and distinct events, an agency may lessen the impact of
a complaint and fragment it into separate parts, ignoring the totality
of the circumstances described as a claim of harassment and hostile
work environment. Fitzhugh v. Department of the Air Force, EEOC Request
No. 05980558 (November 4, 1999); Toole v. EEOC, EEOC Appeal No. 01964702
(May 22, 1997); see EEOC Enforcement Guidance on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). We do not
discern any impropriety in the manner in which the above referenced
claims have been identified. Considering complainant's claims herein
as one of harassment against complainant by several management officials
with regard to several events from September 2002 to May 2003, we do not
find management's actions were sufficiently patterned or pervasive, or
otherwise meets the standard of discriminatory harassment. See McKinney
v. Dole, 765 F.2d, 1138-1139 (D.C. Cir. 1985).
Accordingly, the agency's final order implementing the AJ's finding of
no discrimination regarding claims (1) - (4c) is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 26, 2005
__________________
Date
1The Commission presumes for the purposes of
analysis only, and without so finding, that complainant is an individual
with a disability.
2The Commission notes that in its motion, the agency did not address
whether complainant established a prima facie case of discrimination
on the basis of race. The Commission, however, notes that in the
fact finding conference, management officials testified that they did
not discriminate complainant based on his race. Because we determine
that the agency articulated a legitimate, non-discriminatory reason for
its actions, as more fully discussed herein, we find it unnecessary to
address this issue further.