0120102777
09-24-2010
Alan Bernstein, Complainant, v. Gary Locke, Secretary, Department of Commerce, (National Institute of Standards and Technology), Agency.
Alan Bernstein,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce,
(National Institute of Standards and Technology),
Agency.
Appeal No. 0120102777
Agency No. 095700284
DECISION
On June 4, 2010, Complainant filed an appeal from the Agency's May 3, 2010, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
1. Whether the Agency properly dismissed claims (1)-(18) as untimely.
2. Whether the Agency properly found that Complainant was not subjected to unlawful discrimination as alleged with respect to claims (19)-(21).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Police Officer at the Agency's National Institute of Standards and Technology (NIST) headquarters in Gaithersburg, Maryland. In April 2008, Upon his doctor's recommendation, due to knee and neck injuries, Complainant was reassigned from his Police Office position to the position of Console Operator. The Agency determined that, due to his medical restrictions, Complainant could no longer perform his Police Officer position. Complainant's medical restrictions limited his lifting, walking, and stair climbing. Sometime between December 23, 2008 and January 6, 2009, the Agency advertised the position of Police Officer, GS 4/5, under Announcement Numbers CFM-2009-0043 and CFM-2009-0044. Complainant applied for CFM-2009-0044 as a status candidate since his Captain did not return him to his previous Police Officer position.1 Complainant's application, however, was not forwarded to the selecting official. Apparently, Complainant's application was not considered because he allegedly answered "yes" on the application as having been convicted of the misdemeanor crime of domestic violence. However, Complainant had never been convicted of this crime. Complainant, apparently, along with six other candidates mistakenly answered "yes" on the application as being convicted of domestic violence, and, their applications along with Complainant's were not considered. The Agency's Human Resources Office indicated that, according to federal law, individuals who have been convicted of the misdemeanor crime of domestic violence are prohibited from possessing firearms and thus cannot be police officers.
On January 14, 2009, Complainant received a "Proposal to Suspend" memorandum for his Captain. The memorandum proposed a six day suspension for tardiness, failing to follow leave restrictions, being absent without leave (AWOL), and falling asleep on the job. On January 27, 2009, Complainant met with his Chief to respond and discuss the proposed suspension. After considering Complainant's response, Complainant's Chief issued him a four day suspension in a letter dated February 18, 2009.
On April 10, 2009, in an email to the Agency, Complainant requested reasonable accommodations for his medical condition. Specifically, Complainant requested a modified schedule and leave for doctor visits and medical related issues. On April 21, 2009, Complainant's Lieutenant sent a letter responding to Complainant's request for accommodation. The letter informed Complainant that under the Family Medical Leave Act (FMLA) the Agency would grant Complainant's requested leave. In this regard, the letter stated that beginning May 7, 2009, Complainant would be entitled to twelve weeks of leave without pay.
On May 14, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of religion (Jewish), disability, age (54), and reprisal for prior protected EEO activity when:
1. [His Lieutenant] issued him numerous counseling memoranda.
2. [His Lieutenant] subjected him to written and verbal harassment concerning his use
of his leave.
3. While a Police Officer, he was subjected to discrimination in the way uniforms and equipment were issued.
4. While a Police Officer, he was subjected to discrimination in the training he received.
5. He was harassed about the "offensive odor" that resulted from his pipe smoking.
6. [His Chief and Captain] threatened him with the loss of his Police Officer job if he did not receive an approved clearance. After using two (2) days of annual leave to track down the investigator responsible for approving the clearance, he learned that his clearance had been approved several months earlier.
7. His Sergeant yelled at him and was verbally abusive to him in public on August 8, 2003, and Agency management condoned this behavior.
8. On September 10, 2005, he was issued a reprimand for sleeping on duty.
9. [His Captain] ordered that he was to report to work on October 1, 2005, or that he would be declared Absent Without Official Leave (AWOL) and would forfeit his Office of Workers' Compensation Programs benefits.
10. He received a negative Fiscal Year (FY) 2006 performance evaluation rating which contained false information.
11. Following receipt of his FY 2006 rating, he was no longer eligible for a retention allowance.
12. [His Captain] verbally abused him after his meeting with his Lieutenant on August 27, 2007. During the meeting, [his Captain] told him that he was the "joke of the department," that he was "sick and tired of all this Doctor and Lawyer shit" and that he "was not going to tolerate this shit any longer."
13. He was not provided advance notice that he was being placed on restricted leave on
September 6-7, 2007.
14. On September 17, 2007, his leave status for the dates of September 6-7, 2007, was changed from Leave Without Pay to AWOL.
15. On September 24, 2007, and on other occasions, [his Captain] yelled at him and was verbally abusive towards him.
16. In September 2007, a formal written reprimand was placed in his permanent personnel folder for a period of one (1) year.
17. On November 18, 2008, he was issued a reprimand.
18. On November 26, 2008, he was issued a Notice of Leave Restriction.
19. He applied for the position of Police Officer, as advertised under Vacancy Announcement Number 2009-0043 (Non-Status) and Vacancy Announcement Number 2009-0044 (Status). Despite applying, he later learned that his name was not included on the certificate of eligibles which was forwarded on January 9, 2009. As a result, his application was not forwarded to the selecting official.
20. On February 18, 2009, he was notified of a decision to suspend him without pay for four (4) calendar days.
21. The Agency has failed to provide him with a reasonable accommodation.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
The Agency dismissed claims (1)-(18) for untimely EEO counselor contact. Specifically, the Agency found that Complainant contacted the EEO counselor on March 23, 2009. In this regard, the Agency found that the 45 day time limit to contact the counselor expired on February 6, 2009. The Agency found that the alleged discriminatory matters in claims (1)-(18) occurred prior to February 6, 2009, and, as a result, dismissed the claims as untimely. The Agency noted that although Complainant contacted the EEO office in October 2007, he failed to pursue his informal complaint at that time. In this regard, the Agency noted that Complainant did not contact the EEO office again until March 23, 2009. The Agency also noted that Complainant failed to meet the criteria for a continuing violation with respect to his claim of harassment. Therefore, the Agency dismissed claims (1)-(18) for failing to contact an EEO counselor within 45 days of the alleged discriminatory matter.
The Agency also found that Complainant failed to establish a prima facie case of discrimination based on age and religion. Regarding claim (19), the Agency found that Complainant failed to show that he was treated less favorably than similarly situated individuals outside of his protected class. Specifically, the Agency found that Human Resources did not refer Complainant to the selecting official because he answered "yes" on his job application pertaining to the crime of domestic violence. The Agency also noted that six other candidates who answered "yes" pertaining to the domestic violence question were also not considered. In regards to claim (20), the Agency also found that Complainant failed to identify a similarly situated individual outside of his protected class that was treated more favorably. The Agency also found that Complainant failed to establish a prima facie case of reprisal. In this regard, the Agency noted that there was no evidence that management was aware of his October 2007 contact with the EEO office.
The Agency further found that assuming arguendo that Complainant established a prima facie case based on age, religion, disability, and reprisal, it established legitimate nondiscriminatory reasons for its actions. Namely, regarding claim (19) the Agency did not refer Complainant to the selecting official because he answered "yes" on his job application pertaining to the crime of domestic violence. Regarding claim (20), the Agency found that it properly suspended Complainant because he was late for work, among other occasions, on December 10, 2008, December 18, 2008, and January 5, 2009. The Agency further noted that Complainant was charged 15 minutes of AWOL on an occasion and was found asleep on the job.
The Agency also found that Complainant failed to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Pertaining to claim (19), the Agency noted that notwithstanding Complainant's contention, he, along with other candidates must have mistakenly answered "yes" as having been convicted of domestic violence. In this regard, the Agency noted that Complainant and other candidates who indicated "yes" were never convicted of domestic violence. The Agency noted that there was no evidence of discrimination here since all candidates that checked "yes" on their respective applications were not considered for selection. Further, the Agency noted that neither Complainant's Captain nor his Director was involved in referring Complainant or other candidates to the selecting official for Selection. The Agency further found no evidence that Human Resources intentionally changed Complainant's answer to "yes." As such, the Agency found no evidence of pretext.
The Agency also noted that one candidate who marked "yes" was referred for consideration. However, the Agency noted that this candidate applied for both Announcement numbers CFM-2009-0043 and CFM-2009-0044. The Agency further noted that this candidate answered "yes" as having been convicted of domestic violence on his CFM-2009-0043 application, but marked "no" as not having been convicted of domestic violence on his CFM-2009-0044 application. The Agency found that this candidate's CFM-2009-0044 application was forwarded to the selecting official, but his CFM-2009-0043 application was not. The Agency also found that it correctly suspended Complainant for four days since he was late for work on more than one occasion. Therefore, the Agency found no evidence of pretext in regards to claim (19) and (20).
In regards to claim (21), the Agency found that it provided Complainant with a reasonable accommodation that allowed Complainant to perform the essential functions of his Console Operator position. In this regard, the Agency found that it allowed Complainant to be absent through the use of scheduled or unscheduled intermittent leave. The Agency also noted that there was no evidence that Complainant's late arrivals to work were medically related. The Agency also noted that it accommodated Complainant for his medical condition on previous occasions.
CONTENTIONS ON APPEAL
On Appeal, Complainant contended that the Agency wrongly dismissed claims (1)-(18). In this regard, Complaint contended that the claims were a continuing violation of harassment. Complainant contended that he was subjected to a hostile work environment on more than one occasion. Complainant also contended that the Agency wrongfully reassigned him away from his police officer position. In this regard, Complainant contended that he could perform the essential functions of his police officer position with reasonable accommodations. Complainant further contended that management purposefully denied him the opportunity to return to active duty as a police officer. In this regard, Complainant contended that the Agency intentionally changed his application marking "yes" that he had been convicted of domestic violence when he never was. Complainant contended that an employee that had marked "yes" was referred for selection. Complainant also contended that shortly after the Agency issued its final decision, his application for the position of Lead Police Officer was rejected.2
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Dismissal of Claims (1)-(18)
Under the Commission's regulations, claims of discrimination should be brought to the attention of an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or in the case of a personnel action, within 45 days of the effective date of the action. There is no evidence that Complainant was unaware of the time limits or that he was prevented from contacting an EEO Counselor such that the time limits should be waived for those events which occurred outside of the 45 day time period. However, the Supreme Court has held that an employee alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See National Railroad Passenger Corp v. Morgan, 122 S.Ct. 2061 (June 10, 2002). The Court further held, however, that "discreet discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. Finally, the Court held that such untimely discreet acts may be used as background evidence in support of a timely claim.
Upon review, we reject Complainant's contention that claims (1)-(18) should be deemed timely. With the exception of claims (3), (4) and (5), all the other claims set forth in Complainant's complaint are discrete acts. We also find that none of these claims are part of the same employment practice alleged to be discriminatory as the timely filed claims (19)-(21). Therefore, we find that the Agency properly dismissed claims (1)-(18) as untimely pursuant to EEOC Regulation 29 C.F.R. � 1614.107(a)(2).
Disparate Treatment
To establish a prima facie case of disparate treatment on the bases of religion or age, Complainant must show that (1) he was a member of a protected class; (2) he was subjected to an adverse employment action concerning a term, condition, or privilege of employment; and (3) he was treated differently than similarly situated employees outside his protected class, or there is some other evidentiary link between membership in the protected class and the adverse employment action. McCreary v. Department of Defense, EEOC Appeal No. 0120070257 (April 14, 2008); Saenz v. Navy, EEOC Request No. 05950927 (January 9, 1998); Trejo v. Social Security Administration, EEOC Appeal No. 0120093260 (October 22, 2009). In order to establish a prima facie case on the basis of disability, Complainant must demonstrate that: (1) he is an "individual with a disability"; (2) he is "qualified" for the position held or desired; (3) he was subjected to an adverse employment action; and (4) the circumstances surrounding the adverse action give rise to an inference of discrimination. Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001).
Here, we find that Complainant has failed to establish a prima facie case of discrimination based on religion, age, and disability. In particular, Complainant has failed to indentify a similarly situated individual outside of his protected class that was treated differently. Specifically, in regards to claim (19), Complainant has failed to identify a candidate who had marked "yes" on the application pertaining to domestic violence that was referred to the selecting official for consideration. On appeal, Complainant contended that one candidate who marked "yes" was referred for consideration. However, the record reflects that this candidate applied for both Announcement numbers CFM-2009-0043 and CFM-2009-0044. The record further reflects that this candidate answered "yes" as having been convicted of domestic violence on his CFM-2009-0043 application, but marked "no" as not having been convicted of domestic violence on his CFM-2009-0044 application. The record reflects that this candidate's CFM-2009-0044 application was forwarded to the selecting official, but his CFM-2009-0043 application was not. As such, we find that the candidate that Complainant identified was not similarly situated to him.
In regards to claim (20), we find that Complainant has failed to indentify a similarly situated individual outside of his protected class that was not disciplined for repeated tardiness. In the record, Complainant identified two coworkers (C1 and C2) that he felt were similarly situated to him that were treated more favorably. However, Complainant has failed to demonstrate that C1 was repeatedly late for work as he was. Further, we find that C2 was not similarly situated to Complainant since C2 was a Security Clerk and did not report to the same supervisor to whom Complainant reported. Therefore, we find that Complainant has failed establish a prima facie case of discrimination based on religion, age, and disability with respect to claims (19) and (20).
Reprisal
To establish a prima facie case of reprisal discrimination, Complainant must show that (1) he engaged in protected EEO activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between his protected activity and the adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000). Here, Complainant contended that he was subjected to reprisal due to his October 2007 contact with the EEO office. However, we find no evidence, which shows that any responsible management official was aware of this October 2007 contact. Moreover, Complainant has not demonstrated that a nexus exists between the prior protected activity and the adverse treatment. To demonstrate a nexus based on temporal proximity, the period of time separating the EEO activity and the event at issue must be very close. See Clark County School District v. Breeden, 532 U.S. 268 (2001) (in order to establish sufficient evidence of causality, the time period between the employer's initial knowledge of the prior protected activity and the adverse employment action must be "very close," a three month time period was not sufficiently proximate to establish a causal nexus). Here Complainant's protected activity occurred more than a year prior to his allegations in this instant matter. As such, we find that Complainant cannot establish a prima facie case of reprisal.
Reasonable Accommodation
The Agency is required to make reasonable accommodation for the known physical and mental limitations of qualified individuals with disabilities, unless the Agency can show that reasonable accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o), (p). Reasonable accommodation may include making facilities accessible, job restructuring, modifying work schedules, and other similar actions. See Dennis v. Department of Education, EEOC Appeal No. 0120090193 (June 15, 2010); Spence v. Nuclear Regulatory Commission, EEOC Appeal No. 0120041082 (August 2, 2007), request for reconsideration denied, EEOC Request No. 0520070907 (July 9, 2008).
For the purposes of analysis only, we assume that Complainant is a qualified individual with a disability. Upon review, we find no evidence that Complainant was denied a reasonable accommodation for his disability. In this regard, Complainant contended that the Agency denied his requests for time off for medical issues. However, the record is devoid of any evidence that Complainant's leave requests for doctor's appointments and medical issues were not granted by management. Specifically, the record reflects that management responded to Complainant's April 10, 2009 request for an accommodation on April 21, 2009, by letter. This letter from Complainant's Lieutenant informed Complainant that under the Family Medical Leave Act (FMLA) the Agency would grant Complainant's requested leave. In this regard, the letter stated that beginning May 7, 2009, Complainant would be entitled to twelve weeks of leave without pay.
Complainant further contended that Management refused to accommodate him by removing him from and not returning him to his Police Officer position. However, the record reflects that Complainant was reassigned to the position of Console Operator because his medical restrictions prevented him from performing the full duties of the Police officer position. The Agency is not required to provide Complainant with the accommodation of his choice; it can select among different accommodations as long as its selection is effective. See Kelley v. Social Security Administration, EEOC Appeal No. 0120080209 (May 18, 2010); 29 C.F.R. � 1630.2(o); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, at 17. Therefore, we find that Complainant was not denied reasonable accommodation based on his disability.
Harassment
Finally, to the extent that Complainant is alleging that he was subjected to a hostile work environment, we find under the standards set forth in Harris v. Fork-lift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). A finding that Complainant was subjected to a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's dismissal of claims (1)-(18). We Affirm the Agency's finding that Complainant was not subjected to unlawful discrimination pertaining to claims (19), (20), and (21)
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
____9/24/10______________
Date
1 Complainant applied for the position under CFM-2009-0044 and not under CFM-2009-0043. However, another candidate applied for both Vacancy Announcements.
2 The Commission will not accept new claims raised for the first time on appeal. See EEO Management Directive for 29 C.F.R. Part 1614, Ch. 9 � VI. A. 3. (1999); Kelly v. Dep't of Educ., EEOC Request No. 0120083547 (April 22, 2010). Therefore, we will not address Complainant's claims first raised on appeal, herein.
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0120102777
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102777