0120112105
04-10-2012
George Gsell, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
George Gsell,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120112105
Agency No. 9P0J10017
DECISION
Complainant filed a timely appeal from the Agency’s Final Decision,
dated February 10, 2011. His appeal concerns his equal employment
opportunity (EEO) complaint alleging employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq. The Commission accepts the
appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons,
the Commission AFFIRMS the Agency’s final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Computer Assistant at the Agency’s Air Education and Training Command
(AETC), Network Operations and Oversight Section, at the Randolph Air
Force Base facility in San Antonio, Texas.
On March 30, 2010, Complainant filed an EEO complaint alleging that he
was harassed by co-workers and the Agency discriminated against him on the
bases of disability (abdominal / knee problems, irritable bowel syndrome,
and fibromyalgia)1 and reprisal for prior protected EEO activity under
Section 501 of the Rehabilitation Act of 19732 when:
1. On January 21, 2010, Complainant’s Team Lead accused Complainant
of leaving early and not completing a task;
2. On February 7, 2010, Complainant’s Team Lead screamed at Complainant
in a demeaning manner and told that Complainant that Complainant could
be reduced in grade;
3. On February 10, 2010, Complainant’s Team Lead ordered Complainant
to stay after hours without compensation;
4. On February 22, 2010, Complainant’s first level supervisor required
Complainant to provide additional medical documentation, although
Complainant had not asked for an accommodation;
5. On February 28, 2010, Complainant’s Team Lead spoke to Complainant
in a rude, demanding, and insulting manner after Complainant returned
from the restroom;
6. On March 7, 2010, Complainant’s Team Lead made Complainant wait
while the Team Lead got coffee, despite knowing that Complainant’s
medical condition required frequent bathroom breaks;
7. On March 10, 2010, the Acting Squadron Commander falsely claimed
that Complainant’s second-level supervisor had authority to settle
a mediation;
8. On March 25, 2010, Complainant’s second-level supervisor falsely
accused Complainant of not informing his first-level supervisor that
Complainant would be absent from the office;
9. During a mediation on March 30, 2010, Complainant’s second-level
supervisor mediated in bad faith when he denied that he had full
settlement authority that had previously been granted to him by the
Acting Squadron Commander;
10. On April 7, 2010, Complainant’s first-level supervisor held
a section meeting in which he stated “something to the effect that
someone had complained, and had made, or was making, this an unfriendly
environment.” The first-level supervisor told the employees that they
should come to him with their complaints.
The record shows that Complainant had prior EEO activity, and the record
is disputed as to whether Complainant’s supervisors (first-level,
second-level and third-level) were aware of his prior EEO activity.
The Agency says that it was not aware of any condition requiring
restroom breaks and Complainant did not disclose any requirements.
Complainant’s supervisor stated that he was not aware that Complainant
had a disability. The second level supervisor was not aware of a
disability, but he was aware that Complainant walked with a cane.
He said that he was not aware of prior EEO activity.
The record shows that most of the allegations pertained to a co-worker,
who temporarily served as the Team Lead. The Team Lead was not aware
of Complainant’s prior EEO activity and was not one of the individuals
named in Complainant’s prior EEO activity.
Complainant’s supervisor asked Complainant to provide medical
documentation after Complainant refused to perform a task because of
his medical condition. In October of 2009, Complainant submitted a
physician’s note dated March 2, 2009, to his supervisor. The note
stated that Complainant required extra time for restroom breaks. The
Agency construed this to be a request for reasonable accommodation and
requested further information.
In addition, the record shows that the Agency had to have someone to
maintain the phones. Employees were complaining about Complainant not
being available. One witness, who was a coworker, testified that he
observed the Team Lead being rude to Complainant and stated in his
affidavit that he believed that “It was a hostile environment the
whole time he worked there” [referring to Complainant]. He added,
“There were complaints from workers about him being in the restroom
for long periods.”
The record shows that on January 21, 2010, the Team Lead accused
Complainant of leaving early or not completing a task.
On February 7, 2010, the Team Lead talked with Complainant in a demeaning
manner. The Team Lead concedes that he may have talked with Complainant
in a manner that Complainant found unpleasant. The record shows that
the Team Lead was counseled to be more considerate towards Complainant.
There is no evidence that Complainant was required to work after hours
without compensation.
On March 7, 2010, the Team Lead requested that Complainant wait to go to
the restroom. The record does not show that Complainant told the Team
Lead it was an emergency or that the Team Lead was otherwise aware of
Complainant’s medical condition.
On March 10, 2010, Complainant’s third-level supervisor told
Complainant that the second-level supervisor had authority to settle.
The second-level official testified that the authority was limited to
what the Agency could provide and that Complainant was asking for things
beyond the scope of his authority to grant.
On March 25, 2010, second-level supervisor accused Complainant of
not informing his first-level supervisor that he would be absent.
Complainant disputes that he did not inform the first-level supervisor.
Complainant said that he sent an email to his first-level supervisor.
On April 7, 2010, Complainant’s first-level supervisor held a meeting
with all of the staff. The record shows that the statements were made
as Complainant alleged. The record does not show that his supervisor
singled out Complainant.
The record shows that the Team Lead served in that function for
only four months. After that time, the Agency relieved him of that
responsibility. Management maintains that it was not aware of any
incidents of harassment prior to this complaint.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of his right to
request a hearing before an EEOC Administrative Judge (AJ). In accordance
with Complainant’s request, the Agency issued a final decision pursuant
to 29 C.F.R. § 1614.110(b).
In its decision, the Agency found that Complainant was a qualified
individual with a disability and that he had engaged in prior EEO
activity. The Agency found that the incidents cited in four of the
allegations (3, 7, 8 and 9) did not occur and that the incidents
described in the remaining allegations (1, 2, 4, 5 and 10) did not occur
as described by Complainant.
The Agency also determined that Complainant had been subjected to some
unwelcome conduct by the Team Lead, which management addressed when
they learned of the Complainant’s concerns. The Agency concluded
that Complainant failed to prove that the Agency subjected him to
discrimination because of his disability or that the conduct was severe
or pervasive.
With regard to the allegation that the Supervisor unlawfully requested
documentation, the Agency concluded that Complainant provided the Agency
with a physician’s note, which the Agency construed as a request for
reasonable accommodation. The Agency reasoned that it was not aware that
Complainant had any medical condition requiring additional restroom
time and that Complainant did not disclose the condition. Therefore,
the Supervisor asked for further documentation, which the Agency found
was reasonable under the circumstances.
With regard to the claims of harassment because of reprisal, the
Agency found that there was no evidence that the Team Lead was aware of
Complainant’s prior EEO activity. The Agency found that the Team Lead
was also not aware of Complainant’s medical condition that required
longer break times and Complainant did not tell the Team Lead.
Concerning allegation ten, the Agency found that the Supervisor had not
directed any comments to Complainant at the meeting.
The Agency found that the evidence showed that the incidents were not
severe or pervasive to create a hostile work environment. The Agency
also stated that it took immediate steps to address Complainant’s
concerns once the matters were brought to management’s attention. The
Agency found no discrimination with regard to any of the allegations.
On appeal, Complainant assert that the Agency’s finding of no
discrimination is inconsistent with the testimony of a witness who stated
that he believed that Complainant was subjected to a hostile environment
and who corroborated that the Team Lead had been rude to Complainant on
at least two occasions.
The Agency asks that we affirm the Final Decision because the record
supports the decision.
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
of the parties, and . . . issue its decision based on the Commission’s
own assessment of the record and its interpretation of the law”).
To prevail in a disparate treatment claim such as this, Complainant
must generally demonstrate that he was subjected to an adverse
employment action under circumstances that would support an inference
of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567,
576 (1978). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency’s explanation is a
pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981).;
To establish a claim of 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 to the employer.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further,
the incidents must have been "sufficiently severe or pervasive to alter
the conditions of [Complainant's] employment and create an abusive working
environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
The harasser's conduct should be evaluated from the objective viewpoint of
a reasonable person in the victim's circumstances. Enforcement Guidance
on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (March
8, 1994).
With respect to element (5), 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. See 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). However, where the harassment does not result in a tangible
employment action the Agency can raise an affirmative defense, which is
subject to proof by a preponderance of the evidence, by demonstrating:
(1) that it exercised reasonable care to prevent and correct promptly
any harassing behavior; and (2) that Complainant unreasonably failed to
take advantage of any preventive or corrective opportunities provided by
the agency or to avoid harm otherwise. See Burlington Industries, supra.
In the case of co-worker harassment, an agency is responsible for acts
of harassment in the workplace where the agency (or its agents) knew
or should have known of the conduct, unless it can show that it took
immediate and appropriate corrective action.
The Commission finds that the record before us on appeal is devoid of any
persuasive evidence that discrimination or reprisal was a factor in any
of the challenged actions. The record shows that the Agency took actions
once the co-worker’s conduct was brought to management’s attention.
The preponderance of the evidence of record supports the Agency’s
decision for the reasons stated in the decision. Accordingly, the
Commission finds that Complainant failed to show that he was subjected
to the discrimination alleged.
CONCLUSION
We AFFIRM the Agency’s Final Decision.
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 tends 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 10, 2012
__________________
Date
1 For purposes of this decision, the Commission assumes that Complainant
is a person with a disability.
2 The complaint also raised a claim of age discrimination, which the
Agency did not accept. Inasmuch as Complainant does not raise this on
appeal, we consider the issue waived on appeal.
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0120112105
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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