01980767
05-22-2001
Bernard F. Anderson, Complainant, v. Spencer Abraham. Secretary, Department of Energy, Agency.
Bernard F. Anderson v. Department of Energy
01980767
May 22, 2001
.
Bernard F. Anderson,
Complainant,
v.
Spencer Abraham.
Secretary,
Department of Energy,
Agency.
Appeal No. 01980767
Agency Nos. 96(153) WAPA; 97(83)WAPA
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful 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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant
alleged that he was discriminated against:
(1) in reprisal for his prior EEO complaint when:
(a) complainant was placed in an acting capacity in a manner that gave
the appearance that he would not cooperate in completing necessary
maintenance work; and
(b) a comment was posted on a board outside the electrician's office which
stated, �Now showing - The Bernie Chronicles, Episode XVIII, III III IXX.�
(2) when negative comments were made about him because of his physical
disability, which resulted in his suspension from June 17, 1996, through
June 21, 1996.
The record reveals that during the relevant time, complainant was
employed as an electrician at the agency's Jamestown, North Dakota
facility. Believing he was a victim of discrimination, complainant
sought EEO counseling and subsequently filed two formal complaints on
August 8, 1996, and January 28, 1997. The complaints were accepted and
combined for EEO processing. 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 was not discriminated
against when the above incidents occurred. On appeal, complainant
contends he was discriminated against based on a physical disability
caused by an on-the-job injury to his knee, that comments were made
about his limited work duties which caused a hostile work environment,
and that he was then assigned work that was not within his physical
ability at the time and next suspended for not completing the work in
less time than that allowed for workers without physical limitations.
In addition, complainant contends that the assignment by management of
himself as a journeyman electrician to be in charge of the work is not
supported by his union, which interprets the contract to mean that an
employee is entitled to decline such an acting appointment. The agency
did not respond to complainant's contentions on appeal.
Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973); 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 a
prima facie case of reprisal. In reaching this conclusion, we note that
the record shows that complainant initially told his supervisor that
he did not wish to be assigned acting duties but was told that he had
to assume such duties as part of his job under the union contract with
the agency. Since we find that complainant did not prove conclusively
that he was entitled to decline an acting appointment under the contract,
the preponderance of the evidence showing otherwise, we further find
that any appearance that complainant would not cooperate in completing
necessary maintenance work was due to complainant's own conduct and not
due to any adverse action by the agency. In addition, we note that the
comment which complainant found offensive was promptly removed when he
reported it, that it was put up by a co-worker and not by a management
official, and that other employees were counseled about the impropriety
of such remarks. Therefore, complainant cannot show that he suffered
an adverse action by the agency or that there was a causal connection
between his earlier filing of an EEO complaint and the placing of the
offensive comment on the board outside the electrician's office.
Next, in considering complainant's contention that he suffered adverse
consequences as a result of his alleged disability, the Commission does
not address whether complainant's knee injury constitutes a disability
within the meaning of the Rehabilitation Act. Even if it is assumed
that complainant is an individual with a disability, we still find
that complainant failed to establish discrimination. In this regard,
we note that his doctor's report dated January 24, 1996, indicated
that the physical demands of the work assignment at issue were within
complainant's work tolerance limitations. Although the assignment should
have taken no more than 8 hours to complete, the work was still not
completed three weeks after the last scheduled date for its completion.
Thus, we find that complainant failed to establish that his suspension
for failure to timely complete the work assignment was a pretext to mask
a discriminatory animus by management officials about his disability.
Therefore, after a careful review of the record, including complainant's
other contentions on appeal, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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 (S0900)
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
May 22, 2001
Date