01a40925_final
09-28-2005
Frederick K. Smith, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Frederick K. Smith v. Department of Veterans Affairs
01A40925
September 28, 2005
.
Frederick K. Smith,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A40925
Agency No. 200L-2000
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. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission AFFIRMS
the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Chief, Police & Security, GS-12, at the agency's Medical Center,
Oklahoma City, Oklahoma facility. Complainant sought EEO counseling and
subsequently filed a formal complaint on December 15, 2000, alleging that
he was subjected to a hostile work environment on the basis of reprisal
for prior EEO activity when:
(1) On September 20, 2000, a union official (MG) filed a false unfair
labor practice (ULP) complaint against complainant which alleged that
complainant improperly called a meeting to discuss union activities
and issues;
On September 21, 2000, MG filed a second false ULP complaint alleging
complainant improperly advised a union member not to seek assistance
from the union regarding a hiring issue;
On October 5, 2000, MG submitted a materially false, fictitious and
fraudulent EEO document to an EEO counselor, an Office of Special Counsel
(OSC) investigator and union officials;
On October 11, 2000, MG filed a false ULP complaint against complainant
alleging that the EEO complaint against MG was a form of harassment
and a civil rights violation;
On October 12, 2000, MG circulated throughout the medical center a
document regarding complainant being in arrears on his child support;
On October 19 and 24, 2000, MG falsely accused complainant of directing
security cameras to monitor him and others;
On October 24, 2000, MG questioned, harassed and interrupted
complainant's staff;
On October 25, 2000, MG suggested to the investigating officer that
complainant had something to do with MG's vehicle being stolen;
On October 31, 2000, MG made inappropriate and threatening remarks
about complainant's employment and told complainant's subordinate that
"your Chief is going to mess around and not make it off probation;"
On May 17, 2001, complainant learned that MG falsely told other employees
that complainant threatened to arrest MG;
On June 1, 2001, complainant was informed that he was being accused by
the union of placing security cameras in the women's restrooms;
On June 4, 2001, complainant was informed that the Vice President of the
union was spreading the "bathroom accusation" to others at the agency;
On June 4, 2001, complainant was informed that the union had posted,
on its bulletin board, a cartoon depicting women using the restroom
while cameras were watching them; and
On July 2, 2001, complainant learned that the 9th District Union
Representative (ML) had told one of complainant's subordinates (JB)
that he was harassing MG, failing to protect his safety, and engaging
in inappropriate behavior.
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 Final Agency Decision (FAD), the agency concludes the above
allegations did, in fact, occur. In addition, the agency concludes
that MG was out to get complainant because complainant named him in
an EEO complaint and MG utilized his position as the union President
to create a hostile work environment by making numerous false
accusations against complainant and generally taking steps to defame
his reputation and character. In addition, the agency concluded that
while the evidence shows that mild personality conflicts between MG
and complainant originated prior to complainant's EEO activity (i.e.,
prior to September 15, 2000), the record also supports the finding that
MG initiated a series of allegations against complainant immediately
after he named MG in his EEO complaint.
Despite these findings, the agency concluded that "while complainant
has shown the harassing conduct by MG occurred, he has failed to show
that MG was acting on the part of management, he has failed to show that
management took no action to quell the harassment, and he has failed to
show that there is some basic legal principle permitting the assignment
of liability to management in this case."
On appeal, complainant generally contends that management had the ability
and was obligated to take steps to end the retaliation despite MG's
union status. The agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
The record reveals that in July 2000, the agency had an EEO on-site
review in response to racial tension and violence within the agency.
Following the EEO on-site review, the agency held town hall meetings so
that every employee could share their views on this issue. Complainant,
as the Chair of the Black Affairs (EEO) Committee of the Oklahoma
City Medical Center (BAC) attended the town hall meetings and told the
participants (which included MG and other union officials) that he did not
witness any racial violence in the workplace. Complainant also publicly
stated that he believed that a large source of any racial tension was
created by the American Federation of Government Employees, Local 2562,
AFL-CIO ("the Union). On September 14, 2000, the BAC held a meeting.
During that meeting, MG asserted that the credibility of the BAC was shaky
and that complainant was improperly using his connections with the front
office to promote the secretary in the Quality Management Service to an
Administrative Assistant position. MG also referred to BAC as a "social
club" with no authority to represent employees with EEO complaints.
On September 15, 2000, complainant initiated EEO contact and alleged
that MG was harassing him by making false, slanderous and defamatory
statements about him. Some time prior to September 20, 2000, MG was
informed of this EEO complaint, by the EEO counselor (HR). Thereafter,
on September 20, 2000, MG filed an ULP against complainant for calling a
meeting on August 3, 2000 to discuss union activities. On September 21,
2000, MG filed a second ULP against complainant for telling a bargaining
unit employee not to use the Union on an hiring issue. On September 22,
2000, MG filed an ULP against complainant because he would not turn over
to the Union the EEO Committee's recommendations to the Medical Center
Director. On October 3, 2000, another ULP was filed against complainant
for allegedly threatening the Union during a meeting on October 2, 2000.
On October 11, 2000, MG filed another ULP against complainant for filing
an EEO claim against MG.
In addition, on October 12, 2000, a child support document that MG
possessed previously,<1> was circulated among numerous employees.
The child support document identified complainant as failing to pay
child support and embarrassed complainant among his fellow co-workers
and supervisors. On numerous occasions in October 2000, MG spread
false rumors and accusations that complainant was using his staff and
security cameras to monitor MG. On October 25, 2000, MG reported to
the agency police that his car was stolen and accused complainant as
being responsible. On October 31, 2000, MG told one of complainant's
subordinates that "your chief is going to mess around and not make it off
of probation." In May 2001, MG circulated false rumors and accusations
that complainant threatened to arrest him.
In June 2001, MG circulated false rumors and accusations throughout
the agency that complainant was responsible for placing cameras in the
women's restroom. In addition, MG posted a cartoon depicting cameras
in a restroom on the Union's bulletin board. In addition, a sign was
posted in the women's restroom warning the women that it was possible
that they were being videotaped. The record shows that complainant was
bombarded with rumors and accusations on a continuous basis.
In order to prove harassment in retaliation for engaging protected
EEO activity, the complainant must show that: (1) he engaged in prior
EEO activity; (2) he was subjected to unwelcome conduct related to his
prior EEO activity; (3) the harassment complained of was based on his
prior EEO activity; (4) the harassment had the purpose or effect of
unreasonably interfering with his work performance and/or creating an
intimidating, hostile, or offensive work environment; and (5) there is
a basis for imputing liability to the employer. Roberts v. Department
of Transportation, EEOC Appeal No. 01970727 (Sept. 15, 2000) (citing
Henson v. Dundee, 682 F.2d 897 (11th Cir. 1982).
Assuming, arguendo, that complainant has sufficiently proven elements
1, 2, 3, and 5, we must conclude that complainant has failed to prove
element 4. The Supreme Court has stated: "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 v. Forklift Systems, Inc.,
510 U.S. 17, 22 (1993). In evaluating whether the conduct at issue was
sufficiently severe or pervasive to constitute a hostile work environment,
the Commission has noted that "[a] 'hostile environment' claim generally
requires a showing of a pattern of offensive conduct." See EEOC Policy
Guidance on Current Issues of Sexual Harassment, N-915-050, No. 137
(March 19, 1990). Upon review of the record, we do not find evidence
sufficiently severe or pervasive to create an objectively hostile work
environment. Management is often the target of criticism and accusations,
which often turns out to be false. It is part of the job. Accordingly,
we do not find that MG's conduct herein creates an objectively hostile
work environment for complainant, even assuming such accusations were
false and intended to harass.
Accordingly, 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 (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
September 28, 2005
__________________
Date
1 On March 17, 1999, MG gave complainant a copy of the same child
support document. According to MG, the document was placed under the
door of the Union office on March 15, 1999, by some unknown person.