0120033857
02-01-2007
Michael A. Rainbolt, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Michael A. Rainbolt,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120033857[1]
Hearing Nos. 280-A3-4018X, -4019X, & -4020X
Agency No. 4-02-4062
DECISION
JURISDICTION
On June 18, 2003, complainant filed an appeal from the agency's May 14,
2003 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. The appeal is deemed timely and
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 order.
BACKGROUND
During the relevant period, complainant was employed as an Airway
Telecommunications Systems Specialist (ATSS) at a Kansas facility of the
agency. On November 20, 2001, complainant initiated contact with an EEO
Counselor and, on December 31, 2001, filed a formal EEO complaint alleging
that the agency discriminated against him based on race (Native American),
disability (psoriasis and rheumatoid & psoriatic arthritis), and reprisal
for prior EEO activity when: (1) in November 2001, it failed to select
complainant for a Communication Specialist position, Automation Specialist
position, Environmental Specialist position or Telecommunications
Specialist position, and selected less qualified candidates; and (2) since
September 1998, it subjected complainant to a hostile work environment.
Specifically, as to (2), complainant asserted that he reported the
harassment to agency management on several occasions, without appropriate
response.
The agency conducted an investigation of complainant's claims. At the
conclusion of the investigation, the agency provided complainant with a
copy of the report of investigation, and a notice of the right to request a
hearing before an EEOC Administrative Judge (AJ) or an immediate final
decision by it. Complainant requested a hearing, and on March 18 and 19,
2003, an AJ conducted a hearing on complainant's claims. The information
that follows emerged during the fact-finding stages of the EEO process.
Per a letter from the National Psoriasis Foundation, in the record,
psoriasis is a non-contagious disease that can range from a single
fingernail pit, to a small blemished fraction of skin surface area, to
total body skin disfigurement or crippling arthritis. Complainant stated
that psoriasis is a condition in which the body's belief that it needs to
heal itself accelerates, resulting in excessive skin flaking that can cause
redness, extensive painful itching, and possibly bleeding. Complainant
testified that he has severe psoriasis on the back and front of his limbs
and has been diagnosed with it over at least 70% of his body. He testified
that he has had psoriasis all of his life, but it worsened due to the lack
of sunlight when he moved to Alaska for a prior position. Complainant added
that the skin condition of his psoriasis alone does not necessarily limit
his abilities, but that he does have accompanying arthritis, which causes
his joints to swell and results in constant pain.
Complainant testified that he was diagnosed with rheumatoid arthritis in
2000, and later with psoriatic arthritis. He testified that the arthritis
affects his hips, ankles, knees, shoulders, wrists, and back, and requires
him to use a cane 90% of the time. Complainant stated that his legs do not
support him and can give out at any time, so the only time he does not use
a cane is at home because he can move at a slower pace and lean on chairs
if necessary. He stated that he gets shooting pains which cause the
painful part of his body to become "lame," and that his physician would
like him to use a cane all the time. Complainant added that there are
occasions in which he needs two canes to maneuver around, and sometimes he
requires assistance to and from his vehicle or his work area. Complainant
acknowledged that his physicians have prescribed pain medications, but
explained that, due to his religious beliefs and the potential for side
effects, he only uses aspirin and vitamins and herbs recommended by his
physicians or pain management skills. He stated further that he cannot
take medications that may impair his driving and affect his ability to
work.
Complainant stated that his arthritis prevents him from climbing a ladder
as one job task requires. In this regard, he testified that he cannot
change an ESIS, a projector that displays weather or other information on
the ceiling, because it is necessary to climb a ladder to reach it and he
can not do that. He testified that other personnel bring the equipment
down so that he may perform routine maintenance on it.
Complainant provided medical articles about the condition of psoriasis. In
addition, for his arthritis, complainant provided documentation from his
physician, dated January 24, 2002, stating; "I have reviewed physical
requirements for [complainant's position]. He may do all of these
requirements except he should be restricted from using ladders due to
safety concerns with imbalance." Subsequently, complainant provided follow-
up documentation from his physician, stating; "climbing ladder restriction
is permanent."
Complainant stated that management was aware of his impairments and that he
asked the agency to assist him in finding another job because there is a
high probability that he will not be able to do his ATSS job in the future
because, due to his arthritis, he will need a job that he can perform from
a wheelchair. He stated that the agency failed to select him for the
positions he requested.
Further, complainant stated that he requested another job from management
because he wanted to get away from his coworkers' harassment. Complainant
stated that the constant hostility from his coworkers made him not want to
go to work, and that the stress from the environment worsened his
psoriasis.[2] The record indicates that complainant and his coworkers
share some workspace and equipment, although they did not necessarily work
together during the same hours. Complainant mainly worked the "swing"
shift from 4 p.m. to 2 a.m., and indicated that he sometimes worked alone
during this shift.
Complainant testified that, during the summer of 1999, a coworker (C1) sent
a negative email to complainant's then-supervisor (S1). C1 acknowledged
sending the e-mail message. He wrote, in pertinent part:
I would like to let it be known that the situation with
[complainant's] skin shedding is getting a bit hard to bare[sp]. . . .
[T]he backs and seats of chairs literally covered with
[complainant's] dead skin, phones inundated with his skin, desk tops
and work surfaces covered with flakes of vile particles of
[complainant's] flesh makes me ill. . . . Moreover the possibility
of ingesting the particles and flacks[sp] of his dead skin through the
air and physical contact is to say the least is frightening. . . . I
can not speak for my coworkers but I think several of them fill[sp]
the same way. . . . I know [complainant] is suffering both mentally
and physically with this affliction. But we should not have to suffer
with him due to his unsanitary habits of leaving his remains on common
equipment and work surfaces we share.
Complainant stated that, in April 2002, a coworker (C2) made a racially
disparaging joke, to which complainant responded that the joke was
offensive. Further, complainant stated that, two days later, C2 used
obscene and racially derogatory language toward him.[3]
Complainant further stated that, on an ongoing basis, most of his coworkers
refused to communicate with him, including refusing to convey essential
work-related information between tours of duty. He stated that they only
spoke to him if they needed something from him. He added that his
coworkers, except C3, have said that he does not bathe; that he could do
something about the shedding problem if he wanted to; that they do not want
to sit in a chair or use equipment used by him for fear of catching
psoriasis; and that he has psoriasis because he leads a "sinful" life.
Complainant stated that coworkers have left "post-it" notes on his desk
saying that he needed to take a bath and, in late 2001, someone left a
newspaper article in his mailbox with handwriting stating; "Here is an
experimental laser treatment, Why don't you have it done? It will help
keep your flakes off our equipment."
C3 corroborated complainant's contentions of an environment negative toward
him. Specifically, C3 stated "[the coworkers] would rather that
[complainant] were not there." Further, C3 said that coworkers did not
talk to complainant unless they needed to speak with him as a last resort
for information, and coworkers felt that there were no consequences for
their actions so they acted as they wanted. In addition, C3 indicated that
the only action he saw management take was S1 distributing pamphlets about
psoriasis and supplying the office with disinfectant and wipes. He added
that S2 generally tried to ignore the matter.
Another coworker (C6) acknowledged that he thought complainant's skin
shedding was "pretty annoying and nasty" and that he told complainant that
he should not be at the workplace if he could not climb a ladder. C6
added, "[Coworkers] only have one problem with [complainant] and that is
his cleanliness problems and they would appreciate if he would clean up
after himself." Another coworker, who served as acting supervisor (C7),
acknowledged that she witnessed others push complainant's chair far away
from the work area. Further, C7 stated that she has heard coworkers
question complainant's bathing habits and refuse to sit in a chair used by
complainant. C1 stated that he would speak to complainant, but "I do stay
away from the phone he is usually using and don't share snacks with him [,
b]ut I don't make this obvious." C8 stated that coworkers would mention
concerns to her regarding complainant's psoriasis so that she could pass it
on to management. C8 explained, for instance, "[o]ne example of the
concerns was someone once took a computer keyboard and turned it over and a
large amount of skin fell [out]." Another coworker stated that he has
heard people make disparaging remarks about complainant, including a fellow
employee who referred to complainant as a "dog." Finally, another coworker
(C9) stated; "It's ridiculous when you come to work and the debris is on
the chairs and phones and [complainant] walks away . . . [no]one wants to
be the bad person and we have brought this to the attention of management,
we have a common work area and I don't know if we can catch something or
not." Coworkers stated that S2 would clean the shared area of skin debris
when complainant failed to do so.
The consensus among most of complainant's coworkers was that complainant
created a hostile work environment for himself and others by failing to
clean shared areas and equipment of his skin debris and having body odor.
Some of them added that complainant's personality was less than desirable.
Complainant's coworkers stated that they did not express their opinions in
complainant's presence, but they did remind him consistently to clean-up
after himself.
Complainant asserted that his coworkers greatly exaggerated the extent of
his skin flaking and denied that he did not maintain proper personal
hygiene. Complainant acknowledged that he sheds some skin, but stated that
he cleans up after himself and takes measures to minimize the effects of
his psoriasis on others. For instance, complainant stated that he attempts
to minimize skin shedding by wearing long sleeve shirts, even during hot
weather, and tries to minimize the view of his impairment by wearing a vest
so that the blood on his back can not be seen. In addition, complainant
stated that he has tried sunlamps, oatmeal baths, creams and topical
ointments for the symptoms of his psoriasis, some of which he acknowledged
have odors. Complainant also pointed out, "I work a swing shift, which is
from four [p.m.] to two [a.m.], and a cleaning party usually comes in and
vacuums the area between 10:30 and [2] every day, that . . . makes you
wonder where's all the [alleged] flakiness coming from . . . I can't lose
that much skin." C3 corroborated complainant's contentions, including the
fact that the coworkers are exaggerating the extent of the skin flaking.
For example, C3 indicated that complainant visited his home on many
occasions socially, and he never needed to clean up after complainant due
to flaking skin. C3, who often worked overlapping shifts with complainant,
also testified that he witnessed complainant cleaning up after himself at
work, noting that complainant tried to always sit on the same chair and use
the same computer and cleaned up the area after using it.
Rather than assisting him with his coworkers, complainant alleged that
management encouraged isolation between himself and the rest of the unit.
In his closing testimony, complainant stated, "people just don't want to
deal with [the psoriasis] and they feel there [are] no consequences." He
noted that there is no record of discussions by management with coworkers
regarding his impairment. Coworkers acknowledged, in affidavits, that they
were not disciplined for voicing their opinions or concerns regarding
complainant's psoriasis. Complainant stated that the only action taken by
management was distributing psoriasis pamphlets to all staff. Further,
complainant alleged that management allowed rumors that he was a trouble-
maker and that he did not do any work.
Regarding the alleged hostile work environment, complainant's former
supervisor, S1, testified that there has been a problem regarding
complainant's psoriasis and he tried to educate the coworkers about it and
asked complainant to clean up after himself. Complainant's current
supervisor, S2, stated that S1 gave him the medical information regarding
psoriasis that he distributed to employees and informed him of what he did
to keep the area clean, e.g., provided sanitary wipes and a vacuum cleaner.
S2 stated that he asked complainant to clean up after himself and
explained to coworkers that complainant may not be able to minimize his
flaking skin. S2 stated that complainant mentioned that he had received a
disability vehicle placard from his physician which prompted S2 to send
complainant a letter inquiring whether he needed accommodation, to which
complainant responded that he did not. S2 elaborated that the only
accommodation that complainant required was for someone to assist him with
tasks that required climbing a ladder.
On March 20, 2003, the AJ issued his Findings of Fact and Conclusions of
Law regarding complainant's claims. He found that complainant had not
established that he met the definition of an individual with a disability
with respect to his psoriasis, stating that he failed to show a physical
impairment that substantially limited one or more major life activities.
However, alternatively, the AJ found further that complainant is an
individual with a disability with respect to his arthritis, stating that he
is substantially limited in the major life activity of walking. Regarding
claim (1), the AJ concluded that complainant failed to show that he was the
best qualified candidate for the positions at issue. As to claim (2), the
AJ also found no violation of the law because he could not conclude
complainant was covered by the Rehabilitation Act because of his psoriasis,
but noted:
I would be remiss to ignore the fact that there is, without doubt,
workplace hostility directed toward Complainant as a result of his
psoriasis. . . . [T]here is sufficient evidence to support a
conclusion that [c]omplainant is ostracized and at times treated as a
pariah by some of his coworkers. While such a situation is not
illegal under the laws enforced by the Commission, neither does the
situation appear conducive to a healthy and cohesive federal work
environment. . . . [H]ad there been evidence adduced which would
support a finding that Complainant was and/or is regarded as disabled
as a result of his psoriasis, this Bench Decision would have contained
a lengthy, lengthy section on remedies [based on a finding of
discrimination].
In a decision dated May 14, 2003, the agency accepted and fully implemented
the AJ's decision. The instant appeal followed from complainant.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal Camera
Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whether or not discriminatory intent existed
is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293
(1982). An AJ's conclusions of law are subject to a de novo standard of
review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on
the tone of voice of a witness will be accepted unless documents or other
objective evidence so contradicts the testimony or the testimony so lacks
in credibility that a reasonable fact finder would not credit it. See EEOC
Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
As an initial matter, the Commission notes that portions of the hearing in
this case were held by telephone at the AJ's behest, without the objection
of the parties. The Commission has held that testimony may not be taken by
telephone in the absence of exigent circumstances, unless at the joint
request of the parties and provided specified conditions have been met.
See Louthen v. United States Postal Service, EEOC Appeal No. 01A44521 (May
17, 2006).[4] However, since the facts of this case pre-date Louthen we
will assess the propriety of conducting the hearing telephonically by
considering the totality of the circumstances. Here, it is unclear whether
exigent circumstances existed. On the other hand, it is clear that there
were no issues of witness credibility that might have been impacted by the
taking of testimony telephonically. Under these circumstances, even if it
is assumed that the AJ abused his discretion in this case by taking
testimony telephonically, the Commission finds that his action constituted
harmless error.
Non-Selections
In analyzing a disparate treatment claim, where the agency denies that its
decisions were motivated by complainant's protected class(es) and there is
no direct evidence of discrimination, we apply a burden-shifting method of
proof. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); see Lawson
v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001); see also Hochstadt v.
Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D.
Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976). First, complainant must
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. McDonnell Douglas, 411 U.S. at 802. Next, the agency must
articulate a legitimate, nondiscriminatory reason(s) for its actions. Id.
If the agency is successful, then the complainant must prove, by a
preponderance of the evidence, that the legitimate reason(s) proffered by
the agency was a pretext for discrimination. McDonnell Douglas, 411 U.S.
at 804.
After a careful review of the record, as to claim (1), the Commission finds
that the AJ's finding of no discrimination is supported by substantial
evidence. The prima facie inquiry may be dispensed with in this case since
the agency has articulated legitimate and nondiscriminatory reasons for its
conduct. See U. S. Postal Service Board of Governors v. Aikens, 460 U.S.
711 (1983). To ultimately prevail, complainant must prove, by a
preponderance of the evidence, that the agency's explanation is a pretext
for discrimination. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 256 (1981).
Here, the Commission finds that, assuming arguendo, complainant established
a prima facie case of discrimination based on race, disability and
reprisal, the agency articulated legitimate, nondiscriminatory reasons for
its actions - that better qualified applicants were selected for the
disputed positions. See McDonnell Douglas, 411 U.S. at 802; Lawson, 245
F.3d at 922; Hochstadt, 425 F. Supp. at 324. We concur with the AJ's
finding that complainant failed to prove, by substantial evidence in the
record, that the agency's legitimate, nondiscriminatory reasons for its
actions were pretextual. Thus, we affirm the AJ's conclusion that
complainant failed to prove that the agency discriminated against him based
on race, disability, or reprisal as to the above-mentioned non-selections.
Hostile Work Environment
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). Harassment is
actionable only if the conduct to which the complainant has been subjected
was sufficiently severe or pervasive to alter the conditions of the
complainant's employment. See Cobb v. Dep't of the Treasury, EEOC Request
No. 05970077 (March 13, 1997); Humphrey v. U. S. Postal Service, EEOC
Appeal No. 01965238 (October 16, 1998). 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). In a case of co-worker
harassment, an agency is responsible for acts of harassment in the
workplace where the agency (or its agents) knew or should have known of the
conduct, unless it can show that it took immediate and appropriate
corrective action. See 29 C.F.R. � 1604.11(d).
a. Race and Reprisal
With respect to complainant's claim of harassment based on race and
reprisal, we find that the substantial evidence of record supports the AJ's
finding of no discrimination. Complainant failed to show that he was
subjected to severe or pervasive harassment by his coworkers because of his
race or prior EEO activity.[5]
b. Disability
On the other hand, regarding complainant's claim of harassment on the basis
of disability, the Commission finds that the substantial evidence of record
does not support the AJ's finding that complainant was not discriminated
against on the basis of disability, and we find that with respect to this
basis, a preponderance of evidence in the record shows that discriminatory
harassment did occur. To establish disability-based harassment,
complainant must show that: (i) he is a qualified individual with a
disability [ii] who was subjected to unwelcome harassment [iii] based on
his disability [iv] that was severe or pervasive enough to affect a term,
condition, or privilege of his employment. See Flowers v. Southern Reg'l
Physician Serv. Inc., 247 F.3d 229, 235-36 (5th Cir. 2001); Fox v. General
Motors Corp.; 247 F.3d 169, 177 (4th Cir. 2001), Bradley v. Widnall, 232
F.3d 626, 631 (8th Cir. 2000)). We find that complainant, in the instant
case, satisfied this test.
i. Qualified Individual with a Disability
As an initial matter, an individual with a disability is one who: 1) has a
physical or mental impairment that substantially limits one or more of that
person's major life activities; 2) has a history of such impairment; or 3)
is regarded as having such an impairment. 29 C.F.R. � 1630.2(g). A
physical impairment is "[a]ny physiological disorder, or condition,
cosmetic disfigurement, or anatomical loss affecting one or more of the
following body systems: neurological, musculoskeletal, special sense
organs, respiratory (including speech organs), cardiovascular,
reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and
endocrine." 29 C.F.R. � 1630.2(h). In 29 C.F.R. � 1630.2(j),
"substantially limited" is defined as the inability to perform a major life
activity that the average person in the general population can perform; or
significantly restricted as to the condition, manner, or duration under
which the average person in the general population can perform that same
major life activity. Major life activities include, but are not limited
to, the function of caring for one's self, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working. 29
C.F.R. � 1630.2(i); see Appendix to 29 C.F.R. Part 1630 - Interpretive
Guidance on Title I of the Americans with Disabilities Act (Appendix to 29
C.F.R. Part 1630). A qualified individual with a disability is one who
satisfies the requirements for the employment position he holds or desires
and can perform the essential functions of that position with or without
reasonable accommodation. 29 C.F.R. � 1630.2(m).
In this case, we find that the record establishes that complainant's
psoriasis has caused arthritis that substantially limits him in the major
life activity of walking. Complainant stated that his joints swell, that
his legs do not support him and can give out at any time, and that he is in
constant pain. Further, complainant stated that he uses a cane, sometimes
two, all of the time, except when he is at home and that parts of his body
occasionally become "lame." He noted that his physician would like him to
use a cane all the time. Complainant added that he uses natural remedies
and pain management rather than prescribed medications for his consistent
pain. Since the limitations in walking caused by complainant's arthritis
are substantial, complainant satisfies the statutory definition of an
individual with a disability.
The record also establishes that complainant is qualified to perform the
essential functions of his position. Essentially, it is undisputed that
complainant could perform the essential functions of his position and, as
corroborated by complainant's supervisor - S2, only required assistance
with climbing a ladder, which does not appear to be an essential function.
Based on the evidence of record, we find that complainant is a qualified
individual with a disability.
ii and iii. The Harassment was Unwelcome and Based on
Disability
It is undisputed that complainant has psoriasis and that his psoriasis is
accompanied by excessive skin shedding and arthritis. It is further
undisputed that, one coworker, C6, told complainant that he should not be
at the workplace if he can not climb a ladder, and that most of
complainant's coworkers complained constantly about complainant's skin
condition. The evidence shows that complainant's coworkers did not want to
sit in chairs or use equipment used by complainant for fear of catching
psoriasis, thought his skin debris resulted from poor personal hygiene,
characterized his skin shedding as "vile" or "frightening" or "pretty
annoying and nasty," did not want to eat around complainant, questioned
complainant's bathing habits, indicated he had the skin condition because
of his "sinful" lifestyle, made disparaging remarks about complainant, and
ostracized him.
Complainant stated that coworkers would leave notes on his desk instructing
him to bathe or seek medical treatment. Complainant alleged that
management encouraged the isolation by failing to address it appropriately.
C3 corroborated complainant's contentions about the negative environment
toward him and added "[the coworkers] would rather that [complainant] were
not [in the workplace]." One coworker stated that he did not like to eat
around complainant, and several coworkers stated that they did not like to
use the same chair or equipment as complainant. Further, we note the AJ's
statement, following a hearing, that there was definitely workplace
hostility toward complainant due to his psoriasis. For these reasons, we
find that complainant did not welcome the conduct to which he was subjected
and that the conduct was based upon his psoriasis which was characterized
by various symptoms.
iv. The Harassment Affected a Term, Condition, or Privilege of
Employment
We find that complainant has shown that the harassment was sufficiently
pervasive that it created an intimidating, hostile, or offensive work
environment, such that he did not want to go to work. In this regard, we
note the previously-cited testimony of complainant, C3, and complainant's
other coworkers regarding the way in which complainant was treated due to
his flaking skin - a symptom of his psoriasis. In reaching this
conclusion, we acknowledge that agency management may clearly require an
employee to clean his/her individual or shared workspace and that his/her
fellow employees may voice concerns through the supervisory chain if s/he
fails to do so. However, in the instant case, the coworkers' conduct was
beyond voicing legitimate concerns. The evidence indicates that the
coworkers exaggerated the extent of the skin shedding problem as
corroborated by witness testimony, and that a custodian cleaned the
workspace everyday during the last half of his shift. The vitriolic
nature of their attitude towards complainant's condition was revealed in
their emails and notes when, for example: C1 wrote that seeing the "vile
particles of . flesh makes me ill," and described the situation as
"frightening;" C6 called complainant's psoriasis "nasty" and said he should
not be in the workplace if he can not climb a ladder; C7 indicating that he
tries not to use the same telephone as complainant and not share snacks
with him; another coworker referred to complainant as a "dog"; and C9
expressing a fear about catching "something" from complainant. This list
is not exhaustive, but it clearly shows the coworkers' conduct here was
beyond simply uncivil. Rather, it was "so objectively offensive as to
alter the 'conditions' of the [complainant's] employment." Oncale v.
Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998). Thus, under the
facts of this particular case, we conclude that the weight of the evidence
establishes that complainant was unlawfully subjected to a hostile work
environment because of his disability.
v. Liability
The final issue is whether the agency should be held liable for the actions
of complainant's co-workers. The record revealed that agency management
was clearly aware of the coworkers' actions over a prolonged period of
time, and that the only action they took was to distribute pamphlets in the
workplace about psoriasis. Coworkers stated that they were not counseled
or disciplined for their actions. We find that the agency did not fulfill
its obligation to take prompt remedial action reasonably calculated to end
the harassment once it learned of complainant's allegations and that it did
not take appropriate steps to ensure that the harassment would not recur.
See 29 C.F.R. � 1604.11(d).
CONCLUSION
After a careful review of the record, including complainant's contentions
on appeal and arguments and evidence not specifically addressed in this
decision, we AFFIRM the agency's decision as to claim (1) concerning the
November 2001 non-selections. However, we REVERSE the agency's final
decision regarding claim (2), finding that the preponderance of the
evidence proves that complainant was subjected to a discriminatory hostile
work environment since 1998 because of his psoriasis. In order to remedy
complainant for this discrimination, the agency shall comply with the Order
below.
ORDER
The agency is ordered to take the following remedial actions:
(1) The agency shall take steps to insure that complainant is no longer
subjected to harassment by his coworkers and management. The agency shall
monitor aggressively the environment to accomplish this.
(2) The agency shall provide EEO sensitivity training to all employees in
the office at issue, designed to eliminate acts of harassment in the
workplace.
(3) The agency shall consider taking disciplinary action against the
responsible management officials and the coworkers who engaged in the
harassing conduct. The agency shall report its
decision in its compliance report to EEOC. 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. It should be noted that the
Commission does not consider training to be a disciplinary action.
(4) The agency shall conduct a supplemental investigation pertaining to
complainant's entitlement to compensatory damages incurred as a result of
the agency's discriminatory actions in this matter. The agency shall
afford complainant sixty (60) days to submit additional evidence in support
of a claim for compensatory damages. Complainant shall submit objective
evidence (pursuant to the guidance given in Carle v. Department of the
Navy, EEOC Appeal No. 01922369 (January 5, 1993)) in support of his claim.
Within forty-five (45) days of its receipt of complainant's evidence, the
agency shall issue a final decision determining complainant's entitlement
to compensatory damages, together with appropriate appeal rights.
(5) The agency shall post copies of the attached notice in accordance with
the statement entitled "Posting Order."
(6) 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 Garnett, Kansas facility 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.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by 29 C.F.R.
� 1614.501(e)(1)(iii), he/she is entitled to an award of reasonable
attorney's fees incurred in the processing of the complaint. 29 C.F.R.
� 1614.501(e). The award of attorney's fees shall be paid by the agency.
The attorney shall submit a verified statement of fees to the agency -- not
to the Equal Employment Opportunity Commission, Office of Federal
Operations -- within thirty (30) calendar days of this decision becoming
final. The agency shall then process the claim for attorney's fees in
accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 19848, Washington, D.C. 20036.
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 (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 tends 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 (T0900)
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 (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:
______________________________
Stephen Llewellyn
Acting Executive Officer
Executive Secretariat
February 1, 2007
__________________
Date
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[1] Originally, this appeal was identified as docket number 01A33857. Due
to changes in EEOC's computerized records tracking system, the appeal
docket number has been restyled to 0120033857.
[2] We note that complainant provided articles stating that stress affects
psoriasis negatively.
[3] The record revealed that an accountability board conducted an
investigation and C2 was issued a written admonishment for his actions.
[4] In Louthen, the Commission has promulgated its policy regarding the
taking of telephonic testimony in the future by setting forth explicit
standards and obligations on its Administrative Judges and the parties.
Louthen requires either a finding of exigent circumstances or a joint and
voluntary request by the parties with their informed consent. When
assessing prior instances of telephonic testimony, the Commission will
determine whether an abuse of discretion has occurred by considering the
totality of the circumstances. In particular, the Commission will consider
factors such as whether there were exigent circumstances, whether a party
objected to the taking of telephonic testimony, whether the credibility of
any witnesses testifying telephonically is at issue, and the importance of
the testimony given telephonically. Further, where telephonic testimony
was improperly taken, the Commission will scrutinize the evidence of record
to determine whether the error was harmless.
[5] We find that the incidents, in April 2002, involving a racially
derogatory joke and remark by C2 were sufficiently isolated that they did
not create a hostile work environment for complainant based on his race.