01976372
09-13-2000
Robert Turner, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency,
Robert Turner v. Department of Veterans Affairs
01976372
September 13, 2000
Robert Turner, )
Complainant, )
) Appeal No. 01976372
v. ) Agency No. 96-1419
)
Hershel W. Gober, )
Acting Secretary, )
Department of Veterans Affairs, )
Agency, )
)
DECISION
INTRODUCTION
The complainant timely initiated an appeal to the Equal Employment
Opportunity Commission (Commission) from the final decision of the
agency concerning his allegation that the agency violated Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.; and
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq.<1>
The appeal is accepted in accordance with 64 Fed. Reg. 37,644, 37,659
(1999) (to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue presented herein is whether the complainant has established
that he was discriminated against based on race (African American), sex,
and physical disability (sarcoidosis) when he was allegedly harassed by
his supervisor.
BACKGROUND
The complainant filed a formal complaint in March 1996 in which he
raised the issue identified above. Following an investigation, the
complainant did not request an administrative hearing and the agency
issued a final decision (FAD) in July 1997 finding no discrimination.
It is from this decision that the complainant now appeals.
During the period in question, the complainant was employed as
a Social Worker at the agency's facility in Syracuse, New York.
The complainant alleges that, between December 1995 and March 1996,
his supervisor (the Responsible Official, RO - male, African American)
subjected him to a hostile environment by overly scrutinizing his work
and being critical of his performance. In response, the RO stated,
in effect, that the complainant's performance mandated more scrutiny
than that of other workers. In this regard, the record reveals that
the complainant received a rating of �Minimally Successful� on his most
recent performance appraisal and that, during the period in question,
he was on a performance improvement plan (PIP).<2> The record reveals
that, as a result of the PIP, the complainant was required to meet with
the RO once a week to discuss his performance.
ANALYSIS AND FINDINGS
Race and Sex Harassment
It is well-settled that harassment based on an individual's race and/or
sex is actionable. In order to establish a claim of harassment under
those bases, the complainant must show that: (1) he belongs to the
statutorily protected classes; (2) he was subjected to unwelcome conduct
related to his race and sex; (3) the harassment complained of was based on
race and 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 Henson v. City of Dundee, 682
F.2d 897 (11th Cir. 1982). 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 this case, although the complainant can satisfy the first element
of the analysis, we find insufficient evidence to conclude that he can
satisfy the remaining four. In so finding, we initially note that the
record contains no evidence that the RO's actions were related to the
complainant's sex. Regarding the complainant's race, two individuals
testified that they heard the RO say that the complainant was a southern
Black who would never make it in the north. Although this comment
may be inappropriate, the Commission finds that it is not, by itself,
sufficient to establish a connection between the RO's actions and the
complainant's race. In this regard, the evidence of record supports
a finding that it was the complainant's performance problems, not his
race or sex, that were responsible for the scrutiny his work received
from the RO. Furthermore, the Commission finds that the RO's actions
were not sufficiently severe or pervasive to establish a hostile working
environment. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
Accordingly, the Commission finds the complainant has not established
that he was discriminated against based on either race or sex.
Disability
In order to establish that he was discriminatorily harassed based on
his disability, the complainant must initially demonstrate that he is
an �individual with a disability� as defined at 29 C.F.R. �1630.2(g);<3>
and that he is a �qualified individual with a disability� as defined at
29 C.F.R. �1630.2(m).
An �individual with a disability� is defined as someone who: (1)
has a physical or mental impairment which substantially limits one or
more of such person's major life activities; (2) has a record of such
an impairment; or (3) is regarded as having such an impairment. 29
C.F.R. �1630.2(g)(1)-(3). �Major life activities� include functions
such as caring for one's self, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working. 29 C.F.R. �1630.2(i).
The record reveals that, as a result of sarcoidosis, the complainant
had surgery to have a portion of his tongue removed. According to the
complainant, this has affected his ability to speak in that he �can't
always get the words out� and has �to stop and think and position [his]
tongue� to get certain syllables out. The Commission finds that this
evidence is sufficient to conclude that the complainant is substantially
limited with regard to his ability to speak. Accordingly, the Commission
finds that the complainant is an �individual with a disability.�<4>
A �qualified individual with a disability� is defined as someone
�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 such position.� 29 C.F.R. �1630.2(m).
In this case, we find the complainant is a �qualified individual with
a disability� insofar as he was capable of performing the essential
functions of his Social Worker position.
Although the complainant has demonstrated that he is a �qualified
individual with a disability,� we find he has not established that he
was discriminatorily harassed based on his disability. Not only has the
complainant not demonstrated a connection between the RO's actions and his
disability, but, as previously determined, he has not established that
those actions were severe and pervasive enough to constitute a hostile
environment. Accordingly, the Commission finds the complainant has not
established that he was discriminated against based on disability.
CONCLUSION
Based on a review of the record and for the reasons cited above, it is the
decision of the Commission to AFFIRM the FAD and find the complainant has
not established that the agency discriminated against him as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
__09-13-00_____ _____________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
01 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable,
in deciding the present appeal. The regulations, as amended, may also
be found at the Commission's website at www.eeoc.gov.
02 These problems were in the areas of creating documentation and
dealing with staff members and patients' families.
03 The Rehabilitation Act was amended in 1992 to apply the
standards in the Americans with Disabilities Act (ADA) to complaints
of discrimination by federal employees or applicants for employment.
Since that time, the ADA regulations set out at 29 C.F.R. Part 1630
apply to complaints of disability discrimination. These regulations
can be found on EEOC's website: www.eeoc.gov.
04 In reaching this determination, we have also considered the
complainant's claim in light of the Supreme Court's recent decisions
in Sutton v. United Airlines, Inc., 527 U.S. 471 (1999); Murphy
v. United Parcel Service, Inc., 527 U.S. 516 (1999); Albertsons,
Inc. v. Kirkingburg, 527 U.S.555 (1999); Cleveland v. Policy Management
Systems Corp., 526 U.S. 795 (1999); and Bragdon v. Abbott, 524 U.S. 624
(1998).