0120064927
03-30-2009
Ralph E. Miller, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Ralph E. Miller,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120064927
Agency No. 200H08082005101
DECISION
On September 3, 2006, complainant filed an appeal from the agency's August
2, 2006 final decision concerning his equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of 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.
At the time of events giving rise to this complaint, complainant worked as
a Readjustment Counseling Therapist in the Readjustment Counseling Service
at the Brooklyn Veterans Center in Brooklyn, New York. On May 3, 2005,
complainant filed an EEO complaint alleging that he was discriminated
against on the basis of disability (Post Traumatic Stress Disorder;
Hepatitis C; Cirrhosis of the Liver; Diabetes; Herniated Discs) when:
(1) On November 16, 2004, the Deputy Regional Manager told complainant
"We fire people for this" for not completing progress notes in a timely
manner;
(2) On January 20, 2005, he called in sick for the morning portion of
his tour of duty to which his supervisor (S1) responded "So you're
not coming in... Okay, I'll see you Tuesday" and hung up the phone.
Shortly thereafter S1 contacted him to tell him not to report to
work later that afternoon or on Tuesday but instead to report to Human
Resources for assistance in completing his disability retirement paperwork
because he was not at work again1;
(3) In January 2005, he informed S1 that the lights in his office were
malfunctioning to which S1 responded. "Just leave them off."
Complainant additionally alleged that he was discriminated against on
the bases of disability and reprisal for EEO activity (arising under
the Rehabilitation Act), when2:
(4) From December 2004 to February 16, 2005, S1 pressured him (every day)
to complete the paperwork required for his disability retirement;
(5) On January 25, 2005, S1 told him to file for disability retirement;
(6) On February 7, 2005, he requested to leave earlier than planned,
in order to see an EAP Counselor, to which S1 responded, "We can't be
doing this";
(7) On February 9, 2005, S1 requested a copy of his schedule. When
complainant informed S1 that he already gave it to him, S1 asked, "Where
is it?" After complainant produced the schedule in question, S1 stated,
"Just because you ask for time off does not mean I have to give it to
you"; and
(8) On April 1, 2005, S1 notified complainant that (a) he could not work
limited duty; (b) if complainant returned to work at the Veterans Center,
S1 would necessarily have to be confrontational with him; and that (c)
any time away from the office would require annual or sick leave.
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). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b).
The FAD assumed arguendo that all of the events alleged by the complainant
actually occurred, for purposes of its analysis of whether such conduct
constitutes actionable harassment. The FAD then found that complainant
has shown that he is a member of a protected class by virtue of his
current EEO activity but found that the actions complained of by
the complainant are not likely to dissuade a reasonable employee from
filing a complaint of discrimination. The FAD concluded therefore that
complainant failed to establish a prima facie case of discrimination
based on reprisal.
The FAD further found that complainant failed to show that he is a member
of a protected class by virtue of having a disability. The FAD further
found that complainant did present evidence of unwelcome personal slurs
or other denigrating or insulting verbal or physical conduct, but that
he failed to show that the harassment complained of was based on his
membership in a protected class. The FAD found that complainant further
failed to show that the harassment complained of was sufficiently severe
or pervasive.
On appeal, complainant "clarifies" his claims and reiterates his version
of the facts. He specifically argues that the agency fabricated facts
to support its arguments; that he was subjected to willful retaliation
and discrimination; that the record contains sufficient evidence that
the events claimed by complainant occurred; that he is an individual
with a disability and management was aware of this; that management's
actions were based on his membership in a protected class; that the
challenged actions were severe and pervasive such as to adversely effect
his employment; and that the agency's articulated reasons are unworthy
of belief. In reply, the agency requests that the Commission affirm
the FAD.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
Complainant alleges that he was subjected to a hostile work environment
and harassment. To establish a prima facie case of hostile environment
harassment, a complainant must show that: (1) s/he is a member of a
statutorily protected class; (2) s/he was subjected to harassment in the
form of unwelcome verbal or physical conduct involving the protected
class; (3) the harassment complained of was based on the statutorily
protected class; and (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering
with the work environment and/or creating an intimidating, hostile, or
offensive work environment. Humphrey v. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11.
Initially, we note that we will assume arguendo, that complainant was a
"qualified individual with a disability" when the alleged harassment
occurred.3 Next, we note that S1 provided the following explanations
concerning complainant's claims: (1) S1 admitted that during a regularly
scheduled site visit to the Brooklyn Vet Center on November 16, 2004,
he was made aware that complainant had not done progress notes for
any of his clients for a period of months and consequently spoke to
complainant about the necessity of doing that and how there could be
consequences for noncompliance up to and including removal; (2) S1 did
not recall the incident alleged to have occurred on January 20, 2005;
(3) S1 may have suggested that complainant leave the lights off because
he did not understand what the problem was at the time and because
complainant frequently slept in his office; (4) between December 2004
and February 2005 the issue of complainant's disability retirement came
up in their conversation only every three to four weeks or every month;
(5) S1 never instructed complainant to file for disability on January 25,
2005, or at any other time, but did discuss the complainant's retirement
plans with him around this time; (6) S1 admitted that he probably made
the remark "We can't be doing this" because of the unpredictable nature
of complainant's frequent last-minute leave requests and the stress it
put on the other counselors as well as patients when complainant had
to cancel sessions due to previously scheduled personal appointments
he had known about well in advance; (7) he denied recollection of the
alleged incident occurring on February 9, 2005, but stated that he never
denied complainant's leave requests. S1 also stated that he has told
complainant that just because he asks for time off does not mean that
he had to give it to him.
Addressing (8), S1 noted that complainant never actually requested
limited duty, but S1 admitted that he told complainant that he would not
be able to work limited duty upon his return from an on-the-job injury,
because giving complainant limited duty would produce too much of a
burden because the Veterans Center would not be able to actually meet
the needs of its clients. S1 denied telling complainant on April 1,
2005, that if complainant returned to work, he would necessarily have to
be confrontational with him. Rather, S1 stated that he told complainant
that if he returned to duty, he would have to be held accountable for the
work that he had not been performing (the completion of progress notes),
a responsibility that comprised a critical element of complainant's
position description. Further, S1 admitted that he did tell complainant
that any time away from the office would require annual or sick leave,
because he could no longer continue to allow complainant to arrive late,
leave early and attend a host of medical appointment without charging him
leave as he had previously done as an accommodation to complainant.4
We note that this record also contains testimony from a former
co-worker of that S1 had stated: "where can I get some of the drugs
he's (complainant) taking?"; that he called complainant a "moron"
in a staff meeting; that he commented to staff that complainant was
"incompetent", "drugged", "not long to be working," "[Complainant] is
useless" and "almost out of here." Report of Investigation, Exhibit B-5.
The witness did not provide specific dates for the alleged incidents.
S1 stated that he was unable to recall having made these statements.
Although complainant provided a detailed appeal brief, he did not mention
these alleged comments therein.
In this case, as detailed above, complainant and S1 provide very
different versions of the facts. For instance, complainant states that
S1 discussed his disability retirement daily while S1 states that this
happened at most every 3 to 4 weeks. Based on this record, we simply
cannot conclude that complainant was subjected to harassment that was
sufficiently severe or pervasive as to be considered unlawful. In so
finding, we note that we do not have the benefit of an AJ's findings after
a hearing, as complainant chose a FAD instead, and therefore, we can only
evaluate the facts based on the weight of the evidence presented to us.
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the FAD.
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
March 30, 2009
__________________
Date
1 Complainant indicates that he began the disability retirement process
in early December 2004.
2 Complainant initially raised three more allegations of discrimination
which the agency dismissed based on complainant's failure to make timely
EEO Counselor contact. The determination was upheld by the Commission
on appeal in EEOC Appeal No. 01A54811 (December 29, 2005). Those claims
are not addressed herein. In EEOC Appeal No. 01A54811, the Commission
further found that the remaining incidents which constitute a single
claim of harassment (now addressed in this decision) were improperly
dismissed and we remanded the claim to the agency for further processing.
3 A "qualified individual with a disability" is an individual with a
disability who satisfies the requisite skill, experience, education and
other job related requirements of the employment position such individual
holds or desires, and who, with or without reasonable accommodation, can
perform the essential functions of the position. 29 C.F.R. � 1630.2(m).
4 We note that this complaint does not include an allegation that
management failed to provide complainant with reasonable accommodation
within the meaning of the Rehabilitation Act.
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0120064927
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013