0120073674
03-04-2009
The Estate of Terry L. Ward, Complainant, v. Hilda L. Solis, Secretary, Department of Labor, Agency.
The Estate of Terry L. Ward,
Complainant,
v.
Hilda L. Solis,
Secretary,
Department of Labor,
Agency.
Appeal No. 0120073674
Agency No. CRC04-06-138
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's July 26, 2007, 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. Complainant1, a former Mine Safety and Health Inspector,
GS-9, alleged that the agency discriminated against him on the bases of
disability (job related injuries) and reprisal for prior protected EEO
activity under Title VII of the Civil Rights Act of 1964 when:
1. On February 11, 2004, his supervisor proposed a fourteen-day
suspension;
2. On July 7, 2004, he received a memo from his supervisor notifying
him that he was expected to return to full-time duty on July 19, 2004,
and that he had exhausted all available sick leave; and
3. On July 26, 2004, his supervisor placed his hands on complainant
and shook him in anger.2
There is no affidavit from complainant in the file because the
investigation of this complaint commenced after his death. The record
therefore relies on complainant's account of the incident from a July 28,
2004, letter to the Assistant District Manager. According to complainant
he was filing documents as requested by another inspector when his
supervisor walked up to him, slammed his opened hand twice on his desk and
angrily said, "get up and go do the report that I said for you to do."
The complainant reported that he questioned the supervisor's wording
and the supervisor's anger seemed to elevate and he started slurring
his words. Complainant then told the supervisor that he would comply
with his wishes after he filed the report he was working on.
The supervisor responded, "you better go and do what I told you to do
right now!" As complainant got up, the supervisor abruptly turned around
and reached out with both arms, firmly grabbed both of complainant's
shoulders and shook him, and said, "you better do what I tell you to
do and I mean it. Do you understand me?" Complainant then stated that
he walked over to his union representative's desk and told him what had
occurred.
The supervisor however indicated that on the day in question, he had
had a discussion with complainant and his union representative about
complainant's request to have his Absent Without Leave (AWOL) status
rescinded. The supervisor denied complainant's request. He then gave
complainant and the representative official time to file a grievance
regarding this matter and offered them office space. After they exceeded
the approved amount of official time, he told them to get back to work.
The supervisor then instructed complainant to continue working on the
project that he had assigned. He also told complainant that he needed
to concentrate on his assigned work, but complainant started walking
away from him as he was talking to him. The supervisor indicated that,
" I went over to his desk and hurried to catch up with him, I put my
hand on his right shoulder to communicate with him. As I did this,
he demanded I take my hand off his shoulder, which I did. I explained
to him that he has had a month to complete the book[s] and he hasn't
completed the first book."
In its FAD the agency stated that, assuming the incident occurred as
described by complainant in his letter, the incident was not sufficiently
severe to establish a hostile work environment. The agency explained
that the supervisor's behavior was unprofessional and that he let his
anger get the best of him but there was no evidence that suggested that
complainant sustained any physical harm as a result of the supervisor's
action during this one-time incident. Accordingly, the agency found that
the actions were not severe or pervasive enough to constitute actionable
harassment. See Samuel v. U.S. Postal Service, EEOC Appeal No. 01A40751,
2005 WL 1936065 (Aug. 3, 2005).
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final decision.
It is well-settled that harassment based on an individual's disability or
reprisal is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S.
57 (1986). In order to establish a claim of harassment under those
bases, the complainant must show that: (1) he is a qualified individual
with a disability covered under the Rehabilitation Act and/or engaged
in protected EEO activity; (2) he was subjected to unwelcome conduct;
(3) the harassment complained of was based on his disability and/or
protected activity; (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 Flowers
v. Southern Reg'l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001);
see also Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001).
In this matter, even if we assume that complainant is a qualified
individual with a disability and that he engaged in protected EEO
activity, he has adduced no evidence whatever that the agency's actions
were based on his disability or taken in reprisal for his protected
activity. Nothing in the record suggests that the agency acted out of
prohibited discriminatory animus.
The record indicates that the supervisor reacted to complainant's lack
of responsiveness in a very unprofessional manner. Notwithstanding, we
find the agency correctly transferred the supervisor to another location
in response to this incident. Accordingly, we agree the preponderance of
the evidence of record does not establish that discrimination occurred.
The agency's final decision 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
03/04/09
__________________
Date
1 Complainant died prior to the investigation of this case.
2 The agency initially dismissed the entire complaint on procedural
grounds. The EEOC partially affirmed the dismissal, but remanded issue
#3 to the agency for investigation. The FAD addresses this issue.
The Commission's decision will only address issue #3.
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0120073674
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036