0120112110
04-05-2012
Dave Lewis, III, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Dave Lewis, III,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120112110
Hearing No. 490-2008-00230X
Agency No. ARCEMEMP07JAN00209
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s February 3, 2011 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Motor Vehicle Operator (Seasonal Worker) in the Agency’s Revetment
Operations with the U.S. Army Corps of Engineers in Memphis, Tennessee.
On March 12, 2007, Complainant filed a formal complaint alleging that the
Agency discriminated against him on the bases of race (African-American),
disability (diabetes) 1, age, and reprisal for prior protected EEO
activity under Title VII when:
1) in 2003, his first-level supervisor (FLS) purportedly made sarcastic
remarks to him and blocked his path to a deck barge;
2) from about August 26 to September 6, 2006, he was placed on
administrative leave and required to visit his physician to obtain
medical information before returning to work;
3) in January 2005, he traveled to a mediation session, only to find
out that the mediator was ill and the mediation cancelled;
4) in September 2006, he was reassigned to another job; and
5) in December 2006, he was reassigned to a mechanic’s helper position.
At the conclusion of the investigation, Complainant was provided with a
copy of the report of investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant elected a
hearing before an AJ. During the hearing proceedings, the AJ dismissed
Complainant's complaint because he failed to attend a settlement
conference scheduled for June 29, 2010, and failed to respond to a
show cause order, asking him to explain why his complaint should not be
dismissed for failure to attend the conference or provide notice that
he would not attend.
The Agency implemented that decision and Complainant appealed.
On December 8, 2010, the Commission overturned the dismissal of
Complainant's complaint and remanded the case to the Agency for a final
decision based on the investigative record.
In its final decision, the Agency found no discrimination. The Agency
determined that, even if Complainant could establish a prima facie
case, management had recited legitimate, nondiscriminatory reasons for
its actions. The Agency noted that Complainant had failed to show that
some of the alleged conduct occurred or that any actions that did occur
were prompted by his protected EEO classifications. In this regard,
the FLS denied blocking the barge stairway. The FLS asserted, however,
that while he and Complainant were at Richardson Landing, Complainant had
grabbed his arm, and he had to ask Complainant three times to release it.
Complainant provided no evidence supporting his account of the incident
on the barge stairs. However, other witnesses including, the Heavy
Equipment Operator provided statements supporting the FLS’s assertions.
Management denied having made any derogatory remarks with respect to
Complainant's protected bases.
Concerning Complainant being placed on administrative leave, the record
reflects that in a August 25, 2006 memorandum, Complainant's second-level
supervisor (SLS) informed Complainant that he was being placed on Leave
without Pay (LWOP) pending receipt of medical information showing that
Complainant was fit for full duty. In the memorandum, the SLS noted that
on August 14, 2006, the FLS reported seeing Complainant sleeping on duty
on July 29 and August 12, 2006. The memorandum stated that because of the
safety concerns associated with sleeping in a truck waiting to be loaded,
the Activity sent Complainant for a fitness for duty examination, but
Complainant refused to see the Activity's contract doctor. Consequently,
the Activity concluded that Complainant was not ready, willing, and
able to perform his duties and would not be permitted to return to
work until he provided medical documentation indicating that he was
fit for full duty. The record also reflects that later the same day,
the memorandum was withdrawn and Complainant was notified that he was
being placed on paid administrative leave for up to ten days until he
provided medical documentation showing that he was fit for duty.
Regarding the cancelled mediation session, the record fails to support a
finding that the SLS failed to notify Complainant about the cancellation
or took any action based on Complainant's protected EEO classifications.
The record indicates that the SLS was not notified about the cancellation
until early on the morning of January 17, 2005, when he was sent an
e-mail by the EEO Office. The SLS explained that after he received the
e-mail, someone in the chain of command asked if there was any way to
reach Complainant but no one had his telephone number.
Concerning the September 2006 reassignment, the SLS explained that
Complainant was moved based on his conflict with the FLS. The SLS noted
that he had received reports of heated, verbal and physical conflicts
between Complainant and the FLS.
Regarding Complainant's reassignment to the mechanic’s helper position,
management stated that the job site in question had an excess number of
employees and had enough truck drivers. The affected manager also stated
that he reassigned Complainant in part because some workers had expressed
concern about Complainant’s driving, and he felt that he needed to
take action to ensure that no unsafe incidents occurred. He further
stated that Complainant did not ask why he had been reassigned until
about January 12 or 13, 2007, and at that time he reminded Complainant
that he had volunteered. The affected manager added that other people
working in the excavation pit also performed jobs other than their
regularly assigned duties.
In conclusion, the Agency found that the events of which Complainant
complains, either individually or collectively fail to rise to the level
of unlawful harassment prohibited by the ADEA, Rehabilitation Act or
Title VII. Most importantly, there is no evidence that any of the actions
or decisions of Agency management were motivated by unlawful reasons.
Complainant failed to establish that any of management's reasons for its
actions were pretextual or unworthy of belief. Complainant failed to
establish discrimination under either the theory of disparate treatment
or unlawful harassment.
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 EEOC Management
Directive 110, 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”).
Harassment of an employee that would not occur but for the employee’s
race, color, sex, national origin, age, disability, religion or prior
EEO activity is unlawful, if it is sufficiently patterned or pervasive.
Wibstad v. United States Postal Service, EEOC Appeal No. 01972699
(Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39
(D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift
Systems, Inc. at 3, 9 (March 8, 1994). In determining that a working
environment is hostile, factors to consider are the frequency of the
alleged discriminatory conduct, its severity, whether it is physically
threatening or humiliating, and if it unreasonably interferes with an
employee’s work performance. See Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court
has stated that: “Conduct that is not severe or pervasive enough to
create an objectively hostile work environment - an environment that
a reasonable person would find hostile or abusive - is beyond Title
VII’s purview.” Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile environment harassment, complainant
must show that: (1) he belongs to a statutorily protected class; (2) he
was subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of
was based on his statutorily protected class; (4) the harassment affected
a term or condition of employment and/or had the purpose or effect of
unreasonably interfering with the work environment and/or creating an
intimidating, hostile, or offensive work environment; and (5) there is a
basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897
(11th Cir. 1982). The harasser's conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim's circumstances.
Enforcement Guidance at 6.
An employer is subject to vicarious liability for harassment when it is
"created by a supervisor with immediate (or successively higher) authority
over the employee." Burlington Industries, Inc., v. Ellerth, 524
U.S. 742, 118 S.Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524
U.S. 775, 118 S.Ct. 2275, 2292-93 (1998). When the harassment does not
result in a tangible employment action being taken against the employee,
the employer may raise an affirmative defense to liability. The agency
can meet this defense, which is subject to proof by a preponderance
of the evidence, by demonstrating: (a) that it exercised reasonable
care to prevent and correct promptly any harassing behavior; and (b)
that appellant unreasonably failed to take advantage of any preventive
or corrective opportunities provided by the agency or to avoid harm
otherwise. Burlington Industries, Inc., v. Ellerth, 118 S.Ct. at 2270;
Faragher v. City of Boca Raton, 118 S.Ct. at 2293; Enforcement Guidance:
Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice
No. 915.002 (June 18, 1999). This defense is not available when the
harassment results in a tangible employment action (e.g., a discharge,
demotion, or undesirable reassignment) being taken against the employee.
Here, Complainant asserted that based on his statutorily protected
classes, management continuously subjected him to a hostile work
environment. However, we find that Complainant has not shown that he
was subjected to harassment in the form of unwelcome verbal or physical
conduct involving his protected classes, or the harassment complained of
was based on his statutorily protected classes. Further, Complainant
has not shown that the purported harassment had the purpose or effect
of unreasonably interfering with the work environment and/or creating an
intimidating, hostile, or offensive work environment. While Complainant
has cited various incidents where Agency management took actions that
were either adverse or disruptive to him, we find that Complainant fails
to show that these incidents were as a result of unlawful discrimination.
To the extent Complainant is alleging disparate treatment with respect
to his claims, even assuming Complainant is a person with a disability,
he has not shown that the Agency's reasons for its actions were a pretext
for discrimination.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the Agency’s final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.
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
April 5, 2012
__________________
Date
1 This case arose before January 1, 2009, the effective date of the
Americans with Disabilities Act Amendments Act of 2008, which made a
number of significant changes to the definition of disability under
the Americans with Disabilities Act (ADA) and the Rehabilitation Act.
Because this matter occurred from 2003 - 2006, the Commission will use
the analytical framework as it existed before the enactment of the ADA
Amendments Act of 2008, to determine whether Complainant is an individual
with a disability.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120112110
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112110