01A54108
07-20-2006
Michael Goines, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Michael Goines,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A54108
Hearing No. 270-2004-00152X
Agency No. 200L06292003103
DECISION
JURISDICTION
On May 18, 2005, complainant filed an appeal from the agency's April 13,
2005 final decision concerning his equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Title VII of
the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et
seq., 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 the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Medical Supply Technician in New Orleans, Louisiana. On July 11, 2003,
complainant contacted an EEO Counselor and filed a formal EEO complaint, on
October 29, 2003, alleging that he was discriminated against on the bases
of race (African-American), disability (Post Traumatic Stress Disorder,
Diabetes), subjected to harassment and retaliated against for engaging in
prior protected EEO activity under Title VII and the Rehabilitation Act
when:
1. On May 29, 2003, he was physically assaulted by his first-line
supervisor (S1)[1];
2. on or about June 10, 2003, the Chief of Materials Management
Service, complainant's second-line supervisor (S2) gave him
negative counseling and denied his accommodation request to be
reassigned from S1;
3. on October 13, 2003, S1 threatened to put him on sick leave
certification and he received a formal sick leave warning;
4. on October 17, 2003, his request to be reassigned was denied and he
was threatened with failed performance; and
5. on November 14, 2003, S1 told him not to sit down on the job.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing but failed to respond to the AJ's Show Cause order. As
a result, the AJ dismissed complainant's claims and remanded the case to
the agency to issue a final agency decision (FAD). The agency issued a FAD
pursuant to 29 C.F.R. � 1614.110(b) concluding that complainant failed to
prove that he was subjected to discrimination as alleged.
FINAL AGENCY ACTION
With regard to complainant's harassment claims, the agency found that some
of the incidents occurred as alleged by Complainant. The agency found his
testimony persuasive and that it was corroborated by evidence contained in
the record with regard to the written counseling, denied reassignment, sick
leave warning, and S1's statement telling him to stop sitting down.
Additionally, the agency found that the record also showed that the assault
most likely occurred, but not as complainant alleged. The agency found that
physical contact of some nature, perhaps non-violent, occurred, due to the
testimony of two witnesses and an inconclusive police investigation. The
agency further found that there was insufficient evidence in the record to
determine that S1 made negative comments about complainant's diabetes or
that S2 told complainant his performance was not satisfactory. Therefore,
the agency determined that the record was void of any corroborating
evidence to show that these incidents occurred as complainant alleged.
Further, the agency found that complainant failed to put forth evidence to
support his assertions that the actions were insulting, denigrating, or
otherwise harassing in nature. The agency determined that the actions, not
including the alleged assault, were commonplace employment interactions.
While the agency found the actions of S1 closing the door on complainant to
be inappropriate, the agency determined that complainant failed to
establish that it was harassment rather than some personal disagreement or
interpersonal friction. Further, the agency found that complainant failed
to establish that the complained of incidents were due to discriminatory
animus towards his protected bases. Also, the agency found that
complainant failed to establish that the incidents were sufficiently severe
or pervasive to render complainant's work environment hostile.
With regard to complainant's disparate treatment claims of race and
retaliation, the agency found that complainant failed to establish a prima
facie case of discrimination. The agency found that complainant failed to
proffer evidence of any similarly situated individuals outside of his
protected bases who were treated more favorably. Similarly, the agency
found that even thought complainant was an individual with a disability,
since his PTSD substantially limited the major life activity of working,
complainant failed to identify any similarly situated individuals outside
of his protected bases who were treated more favorably. Further, the
agency found that complainant failed to establish that the agency's
proffered legitimate, non-discriminatory reasons for its actions were a
pretext for race, disability discrimination or retaliation.
With regard to complainant's claim that he was denied a reasonable
accommodation, the agency found that complainant never requested a
reasonable accommodation. The agency found that it was only aware that
complainant did not get along with S1 and wished to be reassigned to
another section, not that he requested a reasonable accommodation.
Further, complainant did not alert the agency of the need to accommodate
him in other ways such as asking to be allowed to take breaks in order to
sit down. Ultimately, with respect to all of his contentions, the agency
concluded that complainant failed to establish that he was discriminated or
harassed as he alleged.
CONTENTIONS ON APPEAL
On appeal, complainant argues that the agency erred when it found that he
was not discriminated as he alleged. Specifically, complainant argues that
the agency erred in finding that he had not been subjected to a hostile
work environment. Further, complainant argues that the agency erred in
finding that he did not request a reasonable accommodation and that it
failed to engage in the interactive process once it reasonably knew he
requested an accommodation. The agency requests that we affirm its finding
of no discrimination. We note that the Commission has the discretion to
review only those issues specifically raised in an appeal. Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614, 9-10
(November 9, 1999). As such, we will only address the issues of whether
complainant was subjected to a hostile work environment and denied a
disability accommodation.
STANDARD OF REVIEW
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); EEOC Management Directive 110,
Chapter 9, � VI.A. (November 9, 1999).
ANALYSIS AND FINDINGS
It is well settled that harassment based on an individual's race, sex,
disability, age, or reprisal is actionable. See Meritor Savings Bank FSB
v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment
based on sex, the complainant must show that: (1) he belongs to the
statutorily protected classes; [2] (2) he was subjected to unwelcome
conduct related to his membership in the class; (3) the harassment
complained of was based on sex; (4) the harassment had the purpose or
effect of unreasonably interfering with his work performance and/or
creating an intimidating, hostile, or offensive work environment; and (5)
there is a basis for imputing liability to the employer. See also Flowers
v. Southern Reg'l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); Fox
v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001). 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).
We find that complainant failed to establish that he was subjected to a
hostile work environment as he alleged. Specifically, with regard to
claims (2)-(5), the Commission notes that the substance of complainant's
allegations concern personnel actions, and complainant presents no evidence
that any of the above actions were objectively offensive, abusive or
hostile, and otherwise taken in order to harass him. The actions alleged
are common workplace occurrences, and unless it is reasonably established
that the actions were somehow abusive or offensive, and were taken in order
to harass complainant on the basis of any of his protected classes, such
everyday events are not sufficiently severe or pervasive so as to offend
the general sensibility of an individual experiencing such occurrences in
the workplace. See Wolf v. United States Postal Service, EEOC Appeal No.
01961559 (July 23, 1998). See also Long v. Veterans Administration, EEOC
Appeal No. 01950169 (August 14, 1997); Bennett v. Department of the Navy,
EEOC Request No. 05980746 (September 19, 2000).
With regard to claim (1), we find that even assuming the incident occurred
as complainant alleged, he failed to establish that this single incident
occurred was due to any of his protected bases. Although complainant
stated that S1 had made negative comments about his diabetes in the past,
complainant failed to proffer any evidence to support his contentions that
this is the case. Further, there is no other evidence in the record to
suggest that a nexus existed between the alleged incident and complainant's
protected bases. Accordingly, complainant failed to establish that he was
subjected to prohibited harassment.
Under the Commission's regulations, an agency is required to make a
reasonable accommodation to the known physical and mental limitations of a
qualified individual with a disability unless the agency can show that
accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o) and
(p). As a threshold matter, complainant must establish that he is an
"individual with a disability." An individual with a disability is one who
(1) has a physical or mental impairment that substantially limits one or
more major life activities, (2) has a record of such impairment, or (3) is
regarded as having such an impairment. Interpretive Guidance on Title I of
the Americans with Disabilities Act, Appendix to 29 C.F.R. � 1630.2(i).
For purposes of our analysis only, we will assume that complainant is an
individual with a disability. The EEOC regulations require the agency to
"make reasonable accommodation to the known physical and mental
limitations" of qualified disabled employees unless the agency can
demonstrate that the accommodation would impose an undue hardship on the
operation of its program. 29 C.F.R. � 1614.203(c)(3). In reassignment
cases, such as this one, complainant has an additional evidentiary burden.
Complainant must present sufficient evidence to support a finding that,
more likely than not, there was a vacant, funded position for which he was
qualified and to which he could have been reassigned. See Barnard v. United
States Postal Service, EEOC Appeal No. 07A10002 (Aug. 2, 2002). Absent
evidence of a particular vacant, funded position, the fact that a vacant,
funded position existed may be inferred based on documentary or testimonial
evidence regarding, inter alia, (1) complainant's qualifications; (2) the
size of the agency's workforce; and (3) indicia of postings and/or
selections during the pertinent time period within classes of jobs for
which complainant would have been qualified. See Id. We find that
complainant was not a qualified individual with a disability because he has
not provided evidence, concrete or inferred that there was a vacant, funded
position available to which he could have been reassigned..
CONCLUSION
After a careful review of the record, including complainant's contentions
on appeal, the agency's response, and arguments and evidence not
specifically addressed in this decision, we affirm the FAD. Complainant
has failed to establish that he was discriminated or subjected to a hostile
work environment as he alleged. We note that the record is void of any
evidence to corroborate the complainant's contentions that the agency was
motivated by discriminatory or retaliatory animus.
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).
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
___07-20-06_______________
Date
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[1] Complainant alleged that after an argument with S1 in S1's office, when
complainant reached the door S1 grabbed his neck from behind and pushed him
out the door. Complainant further alleged that S1 slammed the door behind
him, which hit him in the back. According to the record, complainant
reported the incident to the police and pressed assault charges. The
police investigation was inconclusive.
[2] For analytical purposes only, we assumed that complainant was an
individual with a disability as alleged.