0120081668
11-19-2010
Herbert Kelly, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior, (National Park Service), Agency.
Herbert Kelly,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior,
(National Park Service),
Agency.
Appeal No. 0120081668
Agency No. FNP-2007-0101
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's January 24, 2008 final decision concerning an equal employment opportunity (EEO) complaint claiming 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
During the period at issue, Complainant was employed as a Cement Finisher, WG-3602-8, at the Agency's Mason Shop, Division of Maintenance, National Mall and Memorial Parks, National Capital Region in Washington D.C.
On January 9, 2007, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the bases of race (African-American), color (Black), disability (bilateral knee arthritis), age (over 40), and in reprisal for prior EEO activity when:
1. on October 19, 2006 and November 3, 2006, he was assigned duties despite documented medical restrictions;
2. on November 17, 2006, he was denied training provided to other employees; and
3. on December 11 and 22, 2006, he was charged eleven (11) hours of leave, including six (6) hours of Absence Without Leave (AWOL).
After the investigation, Complainant was provided with a copy of the report of the investigation and notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond.
On January 24, 2008, the Agency issued the instant final decision. The Agency found no discrimination. Specifically, the Agency found that Complainant did not establish a prima facie case of race, color, disability, age and reprisal discrimination.1 The Agency nevertheless found that Agency management articulated legitimate, non-discriminatory reasons for its actions which Complainant failed to show were a pretext.
Regarding the harassment claim, the Agency found that the evidence of record did not establish that Complainant was subjected to harassment based on race, color, disability, age and retaliation. Specifically, the Agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
Regarding claim 1, Complainant's immediate supervisor (S1) stated that he became the supervisor of the Mason Shop on October 16, 2006, and on October 17, 2006, Complainant called the office to report that he was on sick leave that day. S1 further stated that on approximately October 18, 2006, Complainant "gave me a Duty Status Report containing his medical restrictions, but he did not say anything to me about his restrictions or accommodation. He has restrictions regarding the length of time he is allowed to perform certain work activities, which are explained on his Duty Status Reports. I put the documents in his office file folder for reference."
Further, S1 stated that on October 16, 2006, there were approximately four employees sitting in the bay of the Mason Shop, including Complainant. S1 made a general statement to them collectively, that the sand in the dump truck needed to be dumped before it rained. S1 stated "I did not tell [Complainant] specifically that he had to do it, and he did not do it. I was a new supervisor and it was my first day on the job when I made a general statement to a group of employees to unload the dump truck. [Complainant] never told me he could not climb into the dump truck or say he could not do that job."
S1 stated that on October 19, 2006, he asked the plastering crew members, including Complainant, if they had completed the plastering job in the store house at the Mason Shop. S1 stated that Complainant indicated "he had his plastering tools and was ready to finish the job." S1 stated that at that time, the plastering crew was using a scaffold that was five or six feet in total height to repair the plaster on the ceiling "but the person who worked on the scaffold would have had to work approximately one and one-half to three feet off the ground to reach the eight foot high ceiling. [Complainant] is over six feet tall, so he would not have had to work very far off the ground to reach the eight foot high ceiling, and this would have been within his medical restrictions." S1 stated that Complainant had a restriction not to climb into a backhoe loader or high type of equipment, which was not defined. Working on the scaffold did not violate his medical restriction because he would have been working only one and one-half to three feet off the ground. I did not become aware of the three foot restriction until [Complainant] submitted a Duty Status Report, dated December 19, 2006 and submitted to me on January 5, 2007, which was after he worked on this assignment." Furthermore, S1 stated that he never gave Complainant assignments that required him to work outside of his restrictions.
With respect to Complainant's allegation that S1 ordered him to unload the dump truck and that if he did not, he would charge him with AWOL, S1 denied the assertion. Specifically, S1 stated "I did not tell [Complainant] he had to unload the dump truck and I did not threaten him with AWOL or that he had to use leave if he did not do it."
Complainant's third level supervisor (S3) stated that during the relevant time "the only medical restriction regarding [Complainant] that I am aware of was before [S1] became his supervisor, and it was a restriction concerning the use of a jackhammer. [S1] did not report to me that [Complainant] had medical restrictions or that he requested accommodation, and he did not give me any medical documentation concerning him." S3 further stated that Complainant "did not complain to me that [S1] was assigning him duties outside of his reported/alleged medical restrictions."
Regarding claim 2, S1 stated that on November 13, 2006, he conducted a safety meeting in which Complainant was in attendance. S1 stated that during the meeting, the former Acting Mason Shop supervisor (AS) "reminded everyone that the National Masonry Institute Seminar was to take place on November 16, 2006. Since I was not going to attend and [AS] had scheduled everyone for the National Masonry Institute Seminar regarding masonry issues, I had [AS] handle it. I did not remind anyone about the training because they were told about it the prior Monday and I was not involved with it and I did not attend. At the meeting, I told everyone I would drive them to the seminar, which was held at the [named hotel] in Washington, D.C."
Further, S1 stated that on November 16, 2006, Complainant came to work in his work clothes and he was told he could nevertheless attend the National Masonry Institute Seminar "because there was no dress requirement. I told him he could still go because he was on the list to attend, but he did not go and he gave me no reason. I do not know what work he did that day, and I did not give him an assignment. He took three hours of annual leave that day."
Regarding claim 3, S1 stated that on December 11, 2006, he was planning to charge Complainant three hours of AWOL for being absent from work without permission. S1 acknowledged that Complainant had his permission to go to the EEO office for a brief time to sign a paper. S1 stated, however, that Complainant was then supposed to report to his job site. S1 stated that Complainant "did not show up at the job site, and then he returned to the Mason Shop three hours after he left. When I asked him where he had been, he would not tell me and only said to talk to his lawyer. It was my intention to charge him three hours AWOL for not being able to account for the time he was gone and not providing any documentation, but I told him he could submit a leave slip instead, which he did and he was granted three hours sick leave."
S1 stated that on December 19, 2006, Complainant requested eight hours of sick leave and "I approved it, but finance inadvertently coded it wrong and it showed that he was charged AWOL. [Complainant's] time and attendance report has been corrected to show that he was on eight hours sick leave." S1 stated that on December 22, 2006, he charged Complainant three hours of AWOL, for December 11, 2006, "because he left the job three hours early after he went to lunch, without permission and with no explanation."
ANALYIS AND FINDINGS
Disparate Treatment
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions, as addressed above. Neither during the investigation nor on appeal has Complainant produced evidence that these proffered reasons were a pretext for unlawful discrimination and retaliation.
Harassment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). It is also well-settled that harassment based on an individual's prior EEO activity is actionable. Roberts v. Department of Transportation, EEOC Appeal No. 05970727 (September 15, 2000). A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all of the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. The harassers' 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 (March 8, 1994).
In the instant case, we find that the record does not support a finding that Complainant was subjected to any Agency action that rose to the level of a hostile work environment.
Complainant, on appeal, has provided no persuasive arguments indicating any improprieties in the Agency's findings. Therefore, after a review of the record in its entirety, including consideration of all statements 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.2
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
November 19, 2010
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed. I certify that this decision was mailed to the following recipients on the date below:
Herbert Kelly
305 Anacostia Rd SE #B-1
Washington, DC 20019
E. Ned Sloan, Esq
7600 Georgia Ave. NW #208
Washington, DC 20012
Sharon D. Eller, Director
Office of Equal Opportunity
Department of the Interior
1849 C St., NW #MS5221
Washington, DC 20240
__________________
Date
______________________________
Equal Opportunity Assistant
1For purposes of this analysis, we assume without finding that complainant was a qualified individual with a disability.
2 On appeal, Complainant does not challenge the March 27, 2007 partial dismissal issued by the agency regarding another claim (that he was discriminated against on the bases of race, color, disability, age, and in reprisal for prior EEO activity when on September 7, 2006, he overheard a remark made by management that "their first priority was to get [Complainant]."). Therefore, we have not addressed this issue in our decision.
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