Complainant,v.Sally Jewell, Secretary, Department of the Interior (Bureau of Land Management), Agency.Download PDFEqual Employment Opportunity CommissionSep 2, 201501-2014-1675-0500 (E.E.O.C. Sep. 2, 2015) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 , Complainant, v. Sally Jewell, Secretary, Department of the Interior (Bureau of Land Management), Agency. Appeal No. 0120141675 Agency No. BLM-12-0406 DECISION Complainant appeals to the Commission from the Agency’s final decision dated January 23, 2014, finding no discrimination with regard to his 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. For the following reasons, we AFFIRM the Agency’s final decision finding no discrimination. BACKGROUND In his complaint, dated July 18, 2012, Complainant alleged discrimination based on disability (neck and back injury), age (over 40), and in reprisal for prior EEO activity when he was subjected to an ongoing hostile work environment beginning with a series of events that occurred from May, 2012, through April 22, 2013: (1) On May 30, 2012, he was not allowed to participate in training required for all employees: (2) On June 1, 2012, he was counseled for stopping to use the restroom during physical training; (3) On June 2, 2012, he was excluded from physical training in which all other employees at the station took part; 0120141675 2 (4) On June 6, 2012, he was counseled about incoming phone calls to the station/barracks after 10 pm; given an agenda/performance improvement plan; given a schedule different from the rest of the fire staff; and had limits placed on physical activity; (5) On June 7, 2012, he was called into a meeting with his first line supervisor (S1) following an incident with a coworker, in which S1 yelled, cursed, pointed a finger at him and deliberately taunted and tried to provoke him. Subsequently, S1 told a Human Resources (HR) Specialist, “I think we finally got him, we found his downfall;” (6) On June 13, 2012, he was given a “fact finding questionnaire” questioning his role in the June 7th (7) On June 16, 2012, S1 told everyone at the station/barracks that he had filed a complaint against them, but they need not worry, because they were just looking to get rid of him; incident and directed to respond to it by the end of the day under threat of disciplinary action; (8) On June 17, 2012, his request for a meeting with S1 and second line supervisor (S2) was ignored; (9) On June 20, 2012, he was notified of an all employee meeting which he was the topic of; (10) On July 11, 2012, he was threatened with disciplinary action for not following the chain of command, despite the fact that S1 ignored his emails; (11) On July 12, 2012, he received numerous emails from S1 and S2 directing him to provide medical documentation in a certain format by a deadline (the day of the doctor’s visit) under a threat of disciplinary action; (12) His OWCP (Office of Workers’ Compensation Programs) claim was mishandled and S1 misrepresented the truth about an injury he sustained at work; (13) On August 21, 2012, he received an email informing him that he was on administrative leave with pay; (14) On October 3, 2012, he received a directive from S1; (15) On April 1, 2013, he received a harassing letter from S2 (Subject: Excessive Leave, Need for Full-time Employee and Required Medical Leave) which made false statements and demanded medical information that he previously provided; and (16) On April 22, 2013, he received a letter from S2 charging him with misconduct and directing him not to report to work. After completion of the investigation of the complaint, Complainant did not request a hearing. The Agency thus issued its final Agency decision in which it found no discrimination. 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 0120141675 3 of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). After a review of the record, assuming arguendo that Complainant established a prima facie case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory reasons for the alleged incidents. The record indicates that during the relevant time period at issue, Complainant was an Assistant Fire Engine Operator/Lead Fire Fighter, GS-6, in the Agency’s Alturas Field Office, West Valley Fire Station, in Alturas, California. Complainant was a seasonal worker working from March/April through October of each year. The record indicates that Complainant sustained a work related injury in July 2010, and was not able to perform the essential functions of his duties as a Fire Fighter. The record also indicates that Complainant was reinjured on June 14, 2012. The record indicates that since July, 2010, until April 30, 2013, Complainant was on light duty status, washing windows in the barracks, mopping floors, cutting grass, and painting. With regard to claim (1), S1 acknowledged that Complainant was not allowed to participate in training on the day in question because it was his day off, his participation for the training was not needed, and he was not entitled to overtime pay since he was on light duty. With regard to claim (2), S1 indicated that on the date of the incident, Complainant was assigned to ride his bike as part of his physical fitness training but he did not come back for over an hour and he was needed at the station to meet with a fire engine mechanic. Complainant admitted that during his bike riding, he stopped by his friend’s house to use the restroom and to see how his friend was doing. S1 acknowledged that Complainant was counseled for the foregoing incident. With regard to claim (3), S1 and S2 denied that Complainant was excluded from the physical training. Specifically, S2 indicated that due to his work limitations, Complainant was not able to do the physical training which was too strenuous for him. S1 also stated that on the date of the incident, Complainant told S1 that he was not well with an upset stomach after taking some pills. With regard to claim (4), S1 and S2 indicated that Complainant was counseled about incoming phone calls to the station/barracks after 10 PM (as late as 1 AM) because S1 received complaints from his coworkers that the calls were waking them up at night. S1 denied giving Complainant an agenda/performance improvement plan or a schedule different from the rest of the fire staff. S1 indicated that Complainant was given a list of jobs to perform while on light duty. S2 stated that all employees, including Complainant, were given an hour of physical training and due to his physical limitation, he was not allowed training of walking with 45 pounds back packs for three miles. With regard to claim (5), Complainant indicated that on June 7, 2012, while he was on the phone, his coworker, whom he had verbal confrontations in 2011, “irritated” him by dropping a milk crate full of papers on the floor creating a loud noise on two occasions. Complainant 0120141675 4 acknowledged that the coworker later apologized to him about the incident. Complainant reported the incident to S1 and when S1 became confrontational, he told S1 that he would file a complaint against S1 for S1’s unprofessional behavior. S1 indicated that S1 later apologized to Complainant for his behavior and S1 was issued a written reprimanded for the incident. S1, however, denied making the alleged remark to the HR Specialist who did not recall the incident. With regard to claim (6), S2 stated that after consulting with the HR Specialist, S2 was advised to give Complainant the questionnaire to get his input on the June 7, 2012 event, described above. Therein, indicated S2, Complainant was given until June 14, 2012, which was later extended, to complete the questionnaire. S2 denied threatening Complainant as he alleged. With regard to claim (7), S1 denied making the alleged remarks. With regard to claim (8), S1 denied receiving the email. S2 acknowledged receiving the email about a meeting. S2, however, stated that since Complainant was on OWCP continuation of pay at that time and under doctor’s orders not to return to work until June 29, 2012, S2 did not act upon the request immediately and Complainant did not follow up. Complainant indicated that he fell off the ladder and reinjured himself on June 15, 2012. With regard to claim (9), S2 indicated that the June 20, 2012 meeting was held because the fire station employees requested the meeting. S2 stated that Complainant knew about the meeting but choose not to attend since he was on OWCP and was advised by his doctor not to return to work until June 29, 2012. S2 stated that during the meeting, the employees expressed their concerns about the living conditions at the fire station. With regard to claim (10), S1 indicated that since Complainant had been directed many times throughout the year to follow the chain of command and he failed to do so, S1 sent the email at issue. Therein, stated S1, Complainant was merely reminded to follow S1’s instructions and he was advised his failure to do so may result in corrective action being taken. With regard to claim (11), the HR Specialist indicated that Complainant was asked to provide the Agency with medical documentations multiple times because he did not provide sufficient documentation after the first request was made. Complainant does not dispute this. Furthermore, the HR Specialist stated that Complainant was not threatened with a disciplinary action; rather the letters merely contained standard language to remind, and not to harass, employees of possible consequences for not following the supervisor’s instructions. With regard to claim (12), S1 denied mishandling and misrepresenting Complainant’s injury claim at issue. With regard to claim (13), Complainant indicated that on August 20, 2012, he sent, via email, his CA-17 Form wherein his physician indicated that he could return to work in a light duty capacity with restrictions that he could not lift more than five pounds, but he was not allowed 0120141675 5 to return to work. S1 acknowledged that S1 responded by informing Complainant that he would be on administrative leave until management could determine the availability of light duty for him because all supervisors and firefighters were very busy facing with an historic fire season and were trying to suppress catastrophic wildfires at that time. Complainant does not dispute this. In fact, Complainant acknowledged that it was a busy time of year and he could have performed administrative, logistical support, dispatch, or regular maintenance. The HR Specialist, however, indicated that there were no managers available to supervise or oversee Complainant’s work at that time as they were away fighting wildfires. With regard to claim (14), S1 denied the incident. S2 indicated that S2 sent an email to Complainant asking him as to when he would return to full duty to which Complainant responded by indicating that he would get back to S2. With regard to claim (15), S2 denied the letter was intended to harass Complainant; rather it was merely to check on his current condition since he recently had surgery. With regard to claim (16), S2 denied the letter was intended to harass Complainant; rather it instructed him to update management on his condition due to his recent surgery. The record shows that Complainant was not charged with misconduct in this letter. After a review of the record, we find that Complainant failed to rebut the Agency’s legitimate, nondiscriminatory reasons for the alleged incidents. Also, we find that Complainant failed to identify any similarly situated employee who was treated more favorably with regard to the alleged incidents. With regard to harassment claim, we find the instances of alleged harassment neither severe nor pervasive and therefore did not rise to the level of a hostile work environment. Upon review, we find that Complainant was not a qualified individual with a disability since he was not able to perform the essential functions of his position with or without accommodation. Furthermore, despite his claim, we find that Complainant was not entitled to an accommodation of his choice, i.e., solely performing administrative, logistical support, dispatch, or regular maintenance without proper supervision. Also, Complainant failed to show that there was any vacant funded position that met his medical restrictions. Complainant did not claim that he was required to perform his duties beyond his medical restrictions during the relevant time period at issue. We note that the record indicates that many coworkers complained to management a number of times that they felt unsafe and unpleasant living in the barracks/station due to Complainant’s demeanor and intimidation and his late night telephone calls that rang over the speaker constantly. Based on the foregoing, we find that Complainant failed to show that the Agency’s actions were motivated by discrimination as he alleged. 0120141675 6 CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.1 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. 1 Complainant filed an appeal from the Agency’s final decision dated September 20, 2012, concerning his complaint, Agency No. BLM-11-0442, dated October 3, 2011, wherein he alleged a hostile work environment which is pending in our office under EEOC Appeal No. 0120130463. 0120141675 7 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainants Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations September 2, 2015 Date Copy with citationCopy as parenthetical citation