Thomas L. Smith, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionAug 31, 2000
01990316 (E.E.O.C. Aug. 31, 2000)

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.