01a34935
11-22-2004
Frank Beninate III, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Frank Beninate III v. Department of the Navy
01A34935
November 22, 2004
.
Frank Beninate III,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A34935
Agency No. 00-66898-001
Hearing No. 270-A1-9143X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) 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. , 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 appeal is
accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission AFFIRMS the agency's final order.
The record reveals that complainant, a GS-660-11 Pharmacist at
the agency's Naval Ambulatory Care Center, New Orleans, Louisiana
(�facility�), filed a formal EEO complaint on June 28, 2000, alleging
that the agency had discriminated against him on the bases of race
(Caucasian), national origin (Spanish/French/Italian/German), sex (male),
religion (Catholic), disability (irritable bowel syndrome, gastritis,
colitis, diverticulitis, back, shoulder and knee problems, dysthemia and
depression), age (D.O.B. 01-02-50), and reprisal for prior EEO activity
when: (1) beginning in May of 1998, he was denied leave and charged
Absent Without Leave (AWOL) to attend his Father-in-law's funeral, and
subsequently was treated less favorably with respect to his leave and work
schedule; (2) he was subjected to demeaning and insensitive comments at
the facility, his role was undermined and he was denied training and pay;
(3) he was placed on a Performance Improvement Plan (PIP) on May 28, 1999;
(4) he was denied a reasonable accommodation; (5) he was subjected to
racial remarks and demeaning jokes/slurs due to his national origin and
race; and (6) the agency refused to accommodate his religious beliefs.
A review of the record establishes that complainant was employed by
the agency from July of 1977 to July of 2001 as a civilian Pharmacist.
The record establishes that complainant was supervised by military
officers, mainly Navy nurses. Complainant had several different reporting
times, but generally he was required to report for work between 7:45
a.m. and 8:15 a.m. The record further reflects that when complainant's
Father-in-law died in May of 1998, he was unable to locate his Supervisor
to request permission to leave the facility, so he left without approval
and was charged with AWOL. However, the AWOL designation was later
removed and he was charged with sick leave. The record further reflects
that complainant had problems with tardiness and unauthorized absences
in 1999 and 2000. On April 21, 1999, complainant was issued a letter of
requirement regarding absences, tardiness and unauthorized absences for
most of June and July of 1999. Further, a facility Supervisor found
that complainant had failed to provide documentation that he was a
qualified individual with a disability. In addition, in May of 1999,
complainant was notified that his performance was unacceptable and he
would receive the opportunity to improve his performance through a PIP.
One requirement of the PIP was that he arrive at work on time and depart
work on time and take no longer than one-half hour for lunch. On June 7,
1999, complainant was suspended for five (5) days by a facility Supervisor
(S1), for failure to follow orders/instructions and unauthorized absences.
On August 18, 1999, the facility's Officer-in-charge (OIC) issued
complainant a 14 day suspension effective August 22, 1999 to September 7,
1999 for failure to follow proper orders and instructions and unauthorized
absences. Subsequently, complainant's physicians wrote the OIC in
August of 1999 that complainant's tardiness was related to his irritable
bowel syndrome (IBS). The physicians recommended that the agency grant
complainant three (3) months of sick leave until December of 1999 and
then grant him an accommodation in the form of a flexible work schedule.
On January 6, 2000, complainant's physician's informed the agency that he
had not made progress over the three months, and could not return to work.
The physicians also diagnosed complainant as lethargic and obsessive.
Complainant was released to return to work on February 22, 2000 as
long as he had some accommodations regarding schedule, arrival at work
and other assigned duties. Upon his return, another Supervisor (S2)
notified complainant that he was to report for work between 7:30 a.m. and
8:00 p.m. daily. S2 warned complainant that if he arrived outside his
adjusted period, he would be required to submit a leave slip in advance.
Complainant was required to use the agency's computer system to account
for his time, as the OIC stated that his absences were frequent and his
time was difficult to record. Complainant objected to the reporting
time as not in keeping with his physicians request for an accommodation,
and he also objected to the agency's requirement that he work the front
line filling prescriptions. On May 10, 2000, the OIC placed complainant
on indefinite administrative leave while an investigation was initiated
regarding misconduct. As a result, complainant voluntarily retired from
the agency on July 13, 2001.
Believing he was the victim of discrimination, complainant sought EEO
counseling and filed the aforementioned formal EEO complaint. At the
conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ initially concluded that complainant failed to establish a prima
facie case of disability discrimination. In so finding, the AJ found
that none of complainant's physical or mental impairments substantially
limited any of his major life activities. However, the AJ found that even
assuming, arguendo, that complainant established that he is an individual
with a disability due to the effects of IBS, phobias and other emotional
conditions, he failed to establish that the agency failed to accommodate
his impairments. The AJ noted that the only request complainant made
with respect to reasonable accommodation was that his reporting time be
flexible and allow him to make up missed time during his lunch break or
after his normal tour of duty. AJ's Decision at 10-11. The OIC stated
that complainant's late arrival at work affected pharmacy operations,
as his absence affected the facility's ability to fill prescriptions.
Further, S1 stated that military technicians could not fill new civilian
prescriptions or refill prescriptions without complainant. The AJ
concluded that the agency did provide complainant with a reasonable
accommodation. In so finding, the AJ noted that as early as 1998, the OIC
adjusted complainant's work hours, allowed him to call if he was going to
be late and gave him a 30 minute window to arrive for work. AJ's Decision
at 12. The AJ found that problems between complainant and the agency
occurred when he failed to notify his supervisor that he would be late.
The AJ further concurred with the agency's statement that complainant
was the only civilian in the facility and his presence was required
as prescriptions could not be filled unless complainant was there.
While the AJ noted that there were instances where the agency did not
fully accommodate complainant regarding his IBS or required him to use
advanced leave if he was going to be late, she found that complainant
offered no examples of leave denied under these circumstances.
The AJ then found that complainant failed to establish a prima facie
case of discrimination on the bases of race, color, national origin, sex,
age, religion or retaliation. Regarding the attendance issues, wherein
complainant was disciplined for not calling his supervisor to advise
that he would be late, the AJ found that there were no similarly situated
employees not in his protected groups who were treated differently under
similar circumstances. In so finding, the AJ noted that complainant was
the only civilian pharmacist and his attendance problems were related not
only to tardiness but his failure to call his supervisors when he knew
he would be late. As such, regarding the attendance issues, the AJ found
that the agency articulated legitimate, nondiscriminatory reasons for its
actions for disciplining complainant, and these reasons were not proven to
be a pretext for discrimination. Regarding the promotion and pay issues,
the AJ found that complainant failed to show that he was entitled to a
promotion, nor did complainant establish that he requested special pay
or a special salary rate, or that he was entitled to it. As a result,
the AJ found that complainant failed to meet his burden of establishing
discrimination on these bases. The AJ then found that complainant failed
to establish that the conduct he was subjected to from his supervisors
regarding questions about his tardiness and demeaning jokes and slurs,
and found that the conduct complained of was not sufficiently severe
or pervasive to constitute actionable harassment. The AJ found that
complainant has offered no evidence showing the frequency of the remarks
nor evidence that he was threatened or humiliated or that the remarks
interfered with his employment.
Addressing complainant's allegations of religious discrimination,
the AJ noted that complainant alleged that he was not allowed to
adjust his lunch period to attend religious services on Ash Wednesday
and Good Friday. The AJ noted that S1 stated that complainant never
made the request to attend these services at lunch time, and when he
did request leave to attend the services, his request was approved.
As such, the AJ found that complainant failed to establish religious
discrimination based on the conduct of the agency. Finally, the AJ found
that complainant failed to establish a prima facie case of reprisal.
In so finding, the AJ noted that complainant did not engage in EEO
activity before August 31, 1999, when he sought EEO counseling regarding
the allegations in the instant complaint. As such, the allegations
that occurred before August 31, 1999 were not valid claims of reprisal.
Regarding the allegations that arose after August 31, 1999, the AJ found
that complainant either failed to establish that he suffered an adverse
agency action or a causal connection between the incidents and his prior
EEO activity. The agency's final order implemented the AJ's decision.
On appeal, complainant restates arguments previously made at the hearing.
In response, the agency restates the position it took in its FAD, and
requests that we affirm its final order.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We note that
complainant failed to present evidence that any of the agency's actions
were in retaliation for his prior EEO activity or were motivated by
discriminatory animus toward complainant's race, color, national origin,
sex, age or religion. We further concur with the AJ's finding that even
assuming, arguendo, that complainant was a qualified individual with a
disability, he failed to demonstrate that the agency failed to provide a
reasonable accommodation for his IBS and his other impairments. While the
record and medical reports demonstrate that complainant's IBS required
him to use the bathroom 10-12 times in the morning and necessitated
his request for a flexible morning schedule, we concur with the AJ's
finding that the agency accommodated him by allowing him to use sick
leave when he had to be late to the facility. The record establishes
that as early as 1998, complainant was given a flexible schedule and a
30 minute window to arrive for work, with the proviso that complainant
notify his supervisors when he would be late. Investigative File at 842.
As found by the AJ, much of complainant's unauthorized leave occurred
when he failed to notify his supervisors that he planned on being late
on any given day.<1> We concur with the AJ's finding that complainant
was disciplined by the agency as he failed to notify his supervisors
when he was going to be late due to his medical condition, but the
evidence establishes that he was able to use leave as an accommodation.
Finally, we concur with the AJ's finding that while there is evidence of
demeaning jokes and slurs made by several parties at the facility, the
alleged discriminatory conduct was not sufficiently severe or pervasive
so as to alter the conditions of complainant's employment. See Harris
v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). We thus discern no
basis to disturb the AJ's decision. Therefore, after a careful review of
the record, including complainant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, we affirm the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
November 22, 2004
__________________
Date
1 In addition, we concur with the AJ's finding that complainant did
not establish how his condition prevented him from calling into the
facility to notify them that he would be late. We further concur that
while it was unreasonable for the agency to require complainant to use
advanced sick leave on specific days when his IBS affected him, there
is no evidence that his request for accrued sick leave taken after the
fact was ever denied or that the agency acted in less than good faith
regarding complainant's accommodation requests.