0120073427
06-11-2009
Phillip L. DePorter, Complainant, v. Tom Kilgore, President and Chief Executive Officer, Tennessee Valley Authority, Agency.
Phillip L. DePorter,
Complainant,
v.
Tom Kilgore,
President and Chief Executive Officer,
Tennessee Valley Authority,
Agency.
Appeal No. 0120073427
Agency No. 1211-2007010
DECISION
Complainant filed an appeal with this Commission from the June 22,
2007 agency decision finding no discrimination.
Complainant alleges 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 the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. � 621 et seq. Specifically, complainant
alleges that the agency discriminated against him by subjecting him to
harassment based on his sex (male), age (51), and in reprisal for prior
protected EEO activity when:
1. Management sought complainant's private medical records and disclosed
sensitive medical information to unauthorized persons on February 3,
2004.
2. Management took no action when complainant was physically assaulted
on March 20, 2004.
3. Management restricted complainant to working in the Number One Unit
Operator (UO) slot without informing him of the reason on March 22, 2004.
4. Management changed complainant's work schedule without sufficient
notice on or about February 15, 2005.
5. Management required complainant to remain in the Number Two UO slot
on a full-time basis continuing from March 5, 2006.
6. Complainant discovered that his sensitive personal information had
been compromised when he found an employee roster in a UO's desk on
August 14, 2006.
7. Management took no action when complainant found a noose in his
desk on or about October 10, 2006.
8. Complainant was constructively discharged when he was forced to
retire from the agency on November 14, 2006.
Because 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).
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Complainant must generally establish a prima facie case by demonstrating
that complainant was subjected to an adverse employment action under
circumstances that would support an inference of discrimination. Furnco
Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie
inquiry may be dispensed with where the agency has articulated legitimate
and nondiscriminatory reasons for its conduct. See United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983).
To ultimately prevail, complainant must prove, by a preponderance of the
evidence, that the agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
To establish a prima facie case of a discriminatorily hostile work
environment, a complainant must show that: (1) complainant is a member
of a statutorily protected class; (2) complainant 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.
Upon review, the Commission finds that the agency's finding of no
discrimination was proper. The record reflects that the agency's
actions were not based on complainant's membership in a protected
class or on reprisal. In an extensive decision addressing each of
complainant's claims of discrimination at length and detailing the
evidence concerning the reasons for its actions, the agency articulated
legitimate, nondiscriminatory reasons for its conduct. Complainant has
failed to show by a preponderance of the evidence that the agency's
reasons were mere pretext to hide unlawful discrimination. Even accepting
as true that the conduct complained of occurred as complainant alleges,
complainant has not shown that any of the agency's actions was motivated
by discriminatory animus. Further, complainant has not shown that he
was subjected to a discriminatorily hostile work environment. He has
not shown that he was subjected to an environment where the agency's
actions were so severe and pervasive that it altered the conditions
of his employment. Also, the agency has articulated legitimate,
nondiscriminatory reasons for the tangible employment actions in which
it engaged.
The Commission specifically will further elaborate on claims 1,
2, and 7. Regarding claim 1, we find that complainant failed to
show that any of his medical information was sought or disclosed.
Regarding claim 2, the record reveals that complainant stated that
the Bull Run Shift Supervisor (Supervisor-1), a male, came from behind
complainant and wrapped his arms around complainant's chest and pulled
complainant off the floor while Employee A and an Assistant UO (AUO-1)
came running over to pinch complainant's buttocks. Complainant stated
that he reported the incident to Supervisor-2 over two months later and
Supevisor-2 took action. He stated also that AUO-1 apologized to him.
The record also contains the statement of Manager A in which he stated
that the incident was investigated; that he discussed the incident with
all parties; and that he informed the parties that any such behavior,
if it did occur, would not be tolerated. Supervisor-1 admitted being
involved in the incident which he stated lasted about 10 to 15 seconds.
He stated that Employee A and AUO-1 stood next to complainant and each
put his hand on complainant's shoulder, that complainant began backing
up, that he (Supervisor-1) put his hand up, and complainant crouched
down and began swinging his arms. He denied that anyone had tried to
pinch complainant's buttocks. The evidence does not support a finding
that the alleged assault was discriminatorily motivated.
Regarding claim 7, the noose incident, complainant, who is a White male,
stated in his affidavit that he believed, an AUO-2 placed a noose in an
operator's desk to intimidate him into not pursuing an issue concerning
the publication of an employee roster incident identified in claim 6.1 He
also stated that he showed Manager A the noose on November 13, 2006, he
told Manager A who may have been responsible, and that Manager A promised
to look into the incident but that Manager A never did. Manager A stated
that complainant reported that he found a noose in an operator's desk.
He also stated that the complainant stated that the noose was meant for
him although the desk was shared by 10 employees. Manager A further
stated that he did not see the noose until the day before complainant's
last day or his last day. He stated that he questioned employees about
the noose and no one reported knowing anything about it. Manager A also
stated that complainant said he had some ideas about who may have put
the noose in the desk but that complainant never provided any names.
At all times, the ultimate burden of persuasion remains with complainant
to demonstrate by a preponderance of the evidence that the agency's
reasons were pretextual or motivated by intentional discrimination.
Here, complainant failed to carry this burden.
The agency's finding of no discrimination is AFFIRMED.
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
June 11, 2009
__________________
Date
1 The roster incident involved the finding of an employee roster
containing personal information regarding employees, including their
names, social security numbers, payroll numbers, group numbers and job
titles.
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0120073427
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013