Ronald E. Stone, Complainant,v.Daniel R. Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionMar 9, 2000
01975716 (E.E.O.C. Mar. 9, 2000)

01975716

03-09-2000

Ronald E. Stone, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.


Ronald E. Stone v. Department of Agriculture

01975716

March 9, 2000

Ronald E. Stone, )

Complainant, )

) Appeal No. 01975716

v. ) Agency No. 950310

)

Daniel R. Glickman, )

Secretary, )

Department of Agriculture, )

Agency. )

)

DECISION

Complainant timely initiated an appeal of a final agency decision (FAD)

concerning his Equal Employment Opportunity (EEO) complaint of unlawful

employment discrimination in violation of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Age Discrimination

in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.;

and � 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �

791 et seq.<1> Complainant alleges that he was discriminated against

and harassed on the bases of race (White), sex (male), age (51), and

physical and mental disabilities (Impingement Syndrome [relating to

the shoulder] and Depression) when: (1) his supervisory duties were

removed; (2) he was denied the use of a private vehicle; (3) he was

chastised by his supervisor; (4) he was denied training; and (5) he was

subjected to negative comments. The appeal is accepted pursuant to 64

Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).

For the following reasons, we affirm the FAD.

The record reveals that during the relevant time, complainant was

employed as a Resource Assistant (GS-9) at the agency's Region 5,

Mendocino National Forest, Upper Lake District (hereinafter the facility).

Believing he was discriminated against and harassed as referenced above,

complainant sought EEO counseling and subsequently filed a complaint

on March 10, 1995. At the conclusion of the investigation, complainant

requested that the agency issue a final agency decision. It is from this

decision complainant now appeals. Complainant reiterates his contentions

on appeal. The agency did not submit a response.

In its FAD, the agency first concluded that complainant failed to

establish prima facie cases of race, sex, age or disability discrimination

with respect to any of the issues alleged because he did not show that he

was treated differently from employees outside of his protected classes

or that his protected bases had any bearing on the agency's actions.

The agency then concluded that, assuming arguendo, complainant presented

a prima facie case of discrimination on any of the alleged bases, he

failed to present evidence that any of the agency's actions were, more

likely than not, a pretext to mask unlawful employment discrimination.

Disparate Treatment

Based on the standards set forth in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973) and Loeb v. Textron, Inc., 600 F.2d 1003 (1st

Cir. 1979), the Commission agrees with the agency that complainant

failed to establish a prima facie case of discrimination with respect to

race, sex or age when he presented no evidence that similarly situated

individuals outside of his protected classes were treated more favorably.

Moreover, there is no evidence that any of the alleged adverse actions

were motivated by discriminatory animus towards complainant's race,

sex or age. Assuming arguendo complainant established that he was a

"qualified individual with a disability" as defined by the Rehabilitation

Act, we find that complainant failed to prove that he was treated less

favorably than similarly situated non-disabled employees or that any

of the alleged adverse actions were motivated by discriminatory animus

towards complainant's disability.<2>

Harassment

Regarding complainant's claim of harassment, complainant may assert a

Title VII cause of action if the discriminatory conduct was so severe

or pervasive that it created a hostile work environment on the basis of

his race, color, gender, religion, sex, national origin or retaliation.

See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); EEOC Notice

No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift

Systems, Inc. at 3, 6; Cobb v. Department of the Treasury, EEOC Request

No. 05970077 (March 13, 1997). Similarly, the Commission has stated that:

"Harris also applies to cases involving harassment on the basis of age

or disability." See Enforcement Guidance on Harris v. Forklift Systems,

Inc. at 9.

In evaluating the degree to which harassment is sufficiently severe

or pervasive to constitute a hostile environment, the Commission has

noted that "a 'hostile environment' claim generally requires a showing

of a pattern of offensive conduct." See EEOC Policy Guidance on Current

Issues of Sexual Harassment, N-915-050, No. 137 (March 19, 1990).

Initially, we note that there is no evidence in the record to support

a finding that complainant was denied training. Complainant's training

was approved after it was determined not to be duplicative. Complainant

appears to be arguing that because of the delay resulting from his

supervisor's concern that the training was duplicative, the course was

filled before he could submit his request to attend. However, there

is no evidence that complainant's supervisor exercised anything but

legitimate and reasonable concern that complainant was not repeating a

training course.

Concerning complainant's assertion that he was denied the use of a

private vehicle, management stated that the agency's policy regarding

the use of private vehicles was in flux, but no one admitted to denying

complainant the use of a private vehicle. Moreover, complainant admits

to having used one.

Regarding complainant's claim that his supervisory duties were removed, we

find that some of complainant's supervisory duties were removed because:

(1) he was not accomplishing his work; and (2) while he was on sick leave,

he had improperly designated lower grade employees to supervise higher

grade employees in his absence, so his immediate supervisor assumed

supervisory command. We do not find that these actions were taken

to harass complainant, but rather to maintain the efficiency and the

appropriate chain of command at the facility. See Wolf v. United States

Postal Service, EEOC Appeal No. 01961559 (July 24, 1998). Furthermore,

we find that complainant was "chastised" by his immediate supervisor

for not going through the proper chain of command before releasing a

publication that had potentially negative publicity for the agency.

Again, we conclude that this action was not taken to harass complainant

but for legitimate, managerial reasons. Id.

Finally, we find that complainant had developed a pattern of discussing

his personal problems with his colleagues and then accusing them of

making negative comments about him when they repeated things he had said.

We also find that complainant had threatened his supervisor and one of

his co-workers to such a degree that they obtained restraining orders

against him. While the environment in this facility may have been

"hostile," the evidence indicates that the hostility, more often than

not, originated from or was exacerbated by complainant's behavior.

In reaching this conclusion, the Commission notes that one employee

testified that complainant had threatened: (1) to bring a gun to work; and

(2) to bash employees' heads in. Moreover, a second employee testified

that complainant would become "angry and out of control." Accordingly, we

find that the negative comments, which are the only incidents of offensive

conduct on the part of the agency, were motivated by personal animus

toward complainant because of his own behavior, and not by discriminatory

animus on the basis of his race, sex, age or disability. See Determan

v. Department of the Navy, EEOC Appeal No. 01961521 (June 5, 1998).

Therefore, 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 FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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. 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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:

3/9/00

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

Equal Employment Assistant Date

1 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.

2 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.