01990316
08-31-2000
Thomas L. Smith, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Thomas L. Smith v. Department of the Navy
01990316
August 31, 2000
.
Thomas L. Smith,
Complainant,
v.
Richard J. Danzig,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01990316
Agency No. 9500197088
DECISION
INTRODUCTION
Thomas L. Smith (complainant) timely initiated an appeal from the agency's
final decision 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 Section 501 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. � 791 et seq.<1> The appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
Complainant alleges he was discriminated against on the bases of race
(African American), color (black), age (59 and 60 at the relevant times),
disability (knee injury) and reprisal (prior EEO activity) when:
he was denied the opportunity to be temporarily promoted to the position
of Worker Leader, WL-10, for a 120-day period in October 1994;
he was denied the opportunity to work 375 hours of overtime in the VLS
cable area between November 1994 and May 1995; and
he was harassed in June 1994 when he was assigned to a clean-up duty
that violated his medical restrictions and then was told to go home
because there was no work within his restrictions.<2>
For the following reasons, the Commission AFFIRMS the FAD.
BACKGROUND
The record reveals that complainant, an Electrical Equipment Repairer
at the agency's Naval Ordinance Station in Louisville, Kentucky, filed
a formal EEO complaint with the agency on June 12, 1995, alleging that
the agency had discriminated against him as referenced above.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or,
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of race/color, age, disability, or reprisal
discrimination in regard to any of his claims. The agency went on
to articulate legitimate nondiscriminatory reasons for its actions
and concluded that complainant did not establish discrimination by a
preponderance of the evidence.
The agency first noted that the temporary promotions were given in order
of seniority to employees who volunteered and that because complainant did
not volunteer, he was not similarly situated to the selectees. The agency
also noted that the reason complainant did not receive a temporary
promotion was because he did not volunteer and that complainant's
assertion that he was not informed of the meeting wherein employees were
given the opportunity to volunteer was not supported by the record.
In regard to the overtime issue, the agency stated that only employees
assigned to the �VLS work group� worked overtime and that complainant
was not in this group and therefore not similarly situated to those
who received overtime. The agency also offered this explanation as
the legitimate nondiscriminatory reason for its actions and noted that
complainant's argument that employees in his work group did receive
overtime was not supported by the record. The agency concluded that
complainant failed to establish that he was subjected to discrimination.
Finally, the agency found that complainant failed to establish that he was
harassed when he was asked to sweep floors because there is no evidence
that similarly situated employees from different protected groups were
treated more favorably.
CONTENTIONS ON APPEAL
On appeal, complainant raises a number of contentions. He argues
that he gave the investigator the names of specific people who would
testify that members of complainant's work group did receive overtime
during the relevant period and that complainant was not at the meeting
where employees were told about the temporary promotion possibilities.
Complainant argues that overtime records supporting his claim should
have been available. Complainant also takes exception to some of the
statements made by agency witnesses. The agency does not respond to
complainant's contentions.
FINDINGS AND ANALYSIS
Disparate Treatment
Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973); Prewitt v. United States Postal Service, 662 F.2d 292,
310 (5th Cir. 1981); Reeves v. Sanderson Plumbing Products, Inc., 120
S.Ct. 2097(2000); and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to reprisal cases), the
Commission agrees with the agency that complainant failed to establish
by a preponderance of the evidence that he was subjected to race/color,
age, disability or reprisal discrimination.
As an initial matter, we assume, arguendo, that complainant established
that he is a �qualified individual with a disability� within the meaning
of the Rehabilitation Act.<3>
Turning first to the temporary promotion issue, although complainant
cannot establish a prima facie case in the usual way because, unlike
those who received a temporary promotion, he did not volunteer for
one, we find that he has come forward with enough evidence to raise
an inference of discrimination. As the agency acknowledged, he was
qualified for the temporary promotion and he had more seniority then some
of the selectees, i.e., he would have been selected had he volunteered.
Several of the selectees were outside complainant's protected groups,
and complainant had engaged in EEO activity within a few months of the
selections. Moreover, the crux of complainant's allegation is that he
was not given the opportunity to receive a temporary promotion because,
due to his protected bases, his supervisor did not want him to receive
a temporary promotion and therefore did not inform him of the meeting
where the opportunity for such promotions was announced. The record is
clear that employees outside his protected bases were told about the
meeting and did attend. Complainant therefore raised an inference of
discrimination.
We further find, however, that the agency articulated a legitimate
non-discriminatory reason for its actions and that complainant failed
to establish that this reason was a pretext for discrimination.
Specifically, the agency noted that complainant did not receive a
temporary promotion because he did not volunteer for one, despite
the fact that he was given the opportunity to do so. In attempting
to establish pretext, complainant contended that he was not given
the opportunity to volunteer because his supervisor did not tell him
about the opportunity or about the meeting at which it was announced.
Complainant does not have any evidence to establish that his allegation
is true. Complainant argues on appeal that the investigator failed to
interview witnesses named by complainant who would have testified that he
was not at the meeting when the announcement was made. We note, however,
that complainant was given the opportunity to request a hearing, at which
he could have called these individuals as witnesses. Rather than take
this opportunity, complainant requested that a decision be issued on
the record. Based on the record, complainant failed to establish that
the agency's explanation was a pretext for discrimination.
Complainant failed to establish a prima facie case of discrimination
on the issue of overtime. While he argued that unlike those outside
his protected groups, he did not receive overtime on a certain project,
the agency noted that no employees assigned to complainant's work group
received overtime on the relevant project�i.e., that no one similarly
situated to complainant was treated more favorably than he. Moreover,
even assuming that complainant established a prima facie case, the
agency articulated a legitimate non-discriminatory reason for its action,
which complainant failed to establish was a pretext for discrimination.
Specifically, the agency noted that only employees outside complainant's
work group received overtime. While complainant contended that those
in his work group also received overtime, he offered no evidence in
support of this testimony. Again, if upon receiving the investigative
file complainant felt that important witnesses were neglected, he could
have requested a hearing and obtained testimony from these witnesses.
Based on the record, we find that complainant failed to establish by a
preponderance of the evidence that he was subjected to discrimination
when he was denied overtime.
Harassment
Turning to complainant's claim of harassment based on his race/color,
age, disability, and prior EEO activity, complainant may assert a cause
of action for harassment if the discriminatory conduct was so severe
or pervasive that it created a hostile work environment on the bases
of his race, color, gender, religion, national origin, retaliation,
age or disability. See Harris v. Forklift Systems, Inc., 510 U.S. 17,
21 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc.,
EEOC Notice No. 915.002 at 3, 6 (March 8, 1994); Cobb v. Department
of the Treasury, EEOC Request No. 05970077 (March 13, 1997). In the
case at hand, complainant was ordered to participate in clean-up duty
by sweeping a floor covered in debris. When he established that his
medical restrictions prevented him from cleaning the area, he was
ordered to clock out and go home. Complainant alleges that he was
thereby subjected to harassment.
In evaluating the degree to which a work environment is sufficiently
severe or pervasive to constitute harassment, the Commission has
noted that such a 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 at 103 (March 19, 1990). The
Commission has repeatedly found that unless the conduct is very severe,
a group of isolated incidents will not be regarded as rising to the
level of harassment. See Phillips v. Department of Veterans Affairs,
EEOC Request No. 05960030 (July 12, 1996); Banks v. Department of Health
and Human Services, EEOC Request No. 05940481 (February 16, 1995); James
v. Department of Health and Human Services, EEOC Request No. 05940327
(September 20, 1994); see also Harris v. Forklift Systems, Inc., 510
U.S. 17, 22 (1993). Here, even assuming that the incident took place
just as complainant alleged, he has not established that he was subjected
to a pattern of offensive conduct. We find, therefore, that complainant
failed to establish that he was harassed on the bases of his race/color,
age, disability or prior EEO activity.
CONCLUSION
After a thorough review of the record, including complainant's statement
on appeal and evidence and arguments not specifically mentioned in this
decision, we find that complainant failed to establish by a preponderance
of the evidence that he was subjected to discrimination or harassment.
The agency's finding of no discrimination is therefore AFFIRMED.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 31, 2000
__________________
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 record reveals that it was a sprained wrist that prevented
complainant from doing the clean-up task, rather than his knee injury.
3 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.