0120093113
10-29-2010
James R. Dunn Complainant, v. Ken L. Salazar, Secretary, Department of the Interior, (Bureau of Land Management), Agency.
James R. Dunn
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior,
(Bureau of Land Management),
Agency.
Appeal No. 0120093113
Agency No. BLM-05-0449
DECISION
On July 31, 2009, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final agency decision (FAD) dated June 17, 2009, concerning 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely1 and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
Whether Complainant was discriminated against:
1) based on his disability (breathing problems) when in March 2005 [on or before March 18, 2005], the Associate Field Manager denied his request for the reasonable accommodation of his spouse driving him to an Administrative Conference in Reno, Nevada, and instead offered that a subordinate employee drive with him;
2) based on his age (59) and disability when starting in March 2005 [on or about March 24, 2005], the Field Manager repeatedly and forcefully asked Complainant when he was going to retire and what it would take to get him to retire, and encouraged him to retire by claiming he would facilitate a lucrative retirement package;
3) based on reprisal for protesting alleged discriminatory employment practices when:
i) [in April or May] 2005, his budget responsibility was removed by the Field Manager;
ii) on June 29, 2005, the Associate Field Manager e-mailed the office about the temporary promotion [by the Field Manager] of one of his employees without his prior input;2
iii) [on July 6] 2005, without prior discussion, the Field Manager sent out an email to all employees about a security review (audit), adding a major workload to his division;
iv) by letter dated [July 7, 2005], the Field Manager detailed him for 120 days effective July 10, 2005, to the Land Sales and Acquisitions Division;
v) on [July 11, 2005], he learned that one of his problem employees was made acting in the position from which he was detailed, and this was done without his input;
vi) on [July 13, 2005], he read an email by the Field Office secretary which listed birthday announcements, and his name was not listed.3
BACKGROUND
Complainant was formerly employed by the Agency's Las Vegas Field Office, in Las Vegas, Nevada, as the Assistant Field Manager for the Division of Support Services. The Field Office had other divisions, such as Non-Renewable Resources; Land Sales & Acquisitions; Law Enforcement; Lands; and a Fire Management office. The Field Office was led by the Field Manager, who was Complainant's first or second line supervisor. The Associate Field Manager reported to the Field Manager. Complainant was the Administrative Officer for the Field Office, and his responsibilities were largely administrative/business functions such as collection and accounting of fees, contracting, personnel, procurement, and the budget. Another function was information technology and telecommunications. He was detailed effective July 10, 2005, as a staff employee in the Land Sales & Acquisitions Division. The detail was extended some days, and effective November 13, 2005, he was reassigned there. Complainant retired effective February 3, 2006.
Complainant filed an EEO complaint alleging the above issues. 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant did not prove that the Agency subjected him to discrimination as alleged.
On 1, the Agency found that Complainant did not show he was an individual with a disability. On claim 2, the Agency found that the matter was not an adverse action. On claim 3, the Agency found that Complainant engaged in opposition EEO activity by allegedly protesting against discrimination to the Associate Field Manager on June 15, 2005, by telling her he was being discriminated against by the Field Manager pushing him to retire, and that he may contact an EEO counselor. On the removal of budget responsibility, the Agency found that Complainant did not establish a prima facie case of reprisal discrimination because this occurred prior to his allegedly protesting discrimination.
For purposes of analysis, the Agency assumed Complainant established a prima facie case of discrimination on claim 2, and found that he established a prima facie case of reprisal discrimination on all but the first incident in claim 3. It found that Complainant initially raised his retirement with the Field Manager, who was concerned with Complainant's performance, not his age. The Agency found that while Complainant was by-passed by being taken off the email birthday list and not getting input into a temporary promotion, the preponderance of the evidence showed that by this time management determined his work group had significant problems and he would be detailed away while a review occurred. It found that at this point, management acted as if he was already out of his supervisory position. The Agency found that Complainant was detailed because his subordinate employees raised concerns about his management of them, and management wanted to create an opportunity to fairly review the allegations against him.
CONTENTIONS ON APPEAL
Complainant, by and through counsel, contends that he never claimed he has a disability, but in the same correspondence writes he was discriminated against based on disability (breathing problems). On claim 1, he writes that he asked that his wife to drive so she could monitor him at night in case a medical emergency arose. On claim 2, he writes that the Field Manager repeatedly pushed and encouraged him to retire. Complainant writes that he did not complain about being removed from the birthday list, but about being removed from the Acting for the Field Manager list [which occurred at the same time]. In opposition to the appeal, the Agency argues that the FAD should be affirmed.
ANALYSIS AND FINDINGS
Claim 1, denial of reasonable accommodation
In an investigative statement, Complainant wrote that he had a medical problem, not a disability, and contended disability was not the accepted basis. But his attorney wrote claim 1 alleged disability discrimination.4
In his investigative statements, Complainant contended that he was on medication, used oxygen and a PAP [positive airway pressure] machine to help with breathing, and needed his wife drive and accompany him so she could take care of his medical needs at night [for sleeping].5 He stated that he explained all this to the Associate Field Manager, who countered with an offer that a subordinate employee of Complainant's drive with Complainant rather than fly. Complainant stated that he then got a doctor's excuse not to travel, and the subordinate went in his stead.
The Associate Field Manager recalled that she thought Complainant said he was having problems with his back, and his doctor did not want him to fly. She stated that the subordinate employee was planning to fly, and she offered to have her drive with Complainant so the Agency would only have to pay for two people to go, rather than three. When asked if she could remember any other reason Complainant asked why he wanted his wife, an Agency employee in the Las Vegas Field Office to accompany him, the Associate Field Director stated no.
In his August 2005 narrative complaint, which discussed at length his claims and connected facts, and was much closer to the events than the Fall 2008 EEO investigation, Complainant wrote that he could not fly due to his illness and medications, and his wife asked the Associate Field Manager if she could drive. Complainant did not write that he or his wife advised she was needed to take care of his medical needs at night. Complainant wrote that when he contacted his doctor, the doctor told him he should not travel by any means at this time. The record contains a brief doctor's note dated March 18, 2005, that Complainant was temporarily restricted from travel due to medical reasons. A March 25, 2005, note by the Field Manager discussing the incident contains no mention that Complainant said he needed his wife to take care of his nighttime medical needs.
We find that there is no inference of discrimination because Complainant has not proved that events occurred as he claims. Complainant has not shown, by a preponderance of the evidence, that he told the Associate Field Manager that he needed his wife to take care of his medical needs at night. Further, Complainant wrote that his doctor said he should not travel by any means at this time. Given this advice, Complainant was not able to travel to Reno, in any event.
Claim 2, being pushed and encouraged to retire
Complainant claimed that the Field Manager repeatedly on numerous occasions pushed him to retire, and encouraged him to do so with offers of a lucrative retirement package. The Field Manager denied this. He countered that Complainant was the one who brought up his retirement in the context of his not feeling well and being tired of the job. The Field Manager denied asking Complainant when he was going to retire, saying it was never a negative conversation of when you going to retire or such a question. He stated they discussed the idea of a retirement package in the context of Complainant wanting to retire, but not being old enough to do so without penalty, and what could be done to help.
The Field Manager's account is corroborated by documentation. In his August 2005, complaint, Complainant wrote that in an introductory lunch (around March 2005), the Field Manager asked about his future plans, and he responded that he was tired, sick, and might consider retiring. In a March 25, 2005, note, the Field Manager wrote that Complainant said he was not energized by the work anymore, and looking for retirement. In an April 19, 2005, mid-year performance review noting office relationship concerns, the Field Manager noted that Complainant said a few weeks ago he was "burned out" and on many occasions referred to contemplating retirement and moving on.
Claim 2 is a claim of harassment. To establish a claim of harassment a 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 (Mar. 8, 1994).
Complainant has not established harassment because he has not shown he was subjected to unwelcome verbal conduct. He has not shown, by a preponderance of the evidence, that he was pressed and pushed to retire or encouraged to do so with offers of a lucrative retirement package.
Claim 3i, removal of Complainant's budget responsibility
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
Complainant contends that he was retaliated against because he protested the Field Manager repeatedly pressing him to retire. Complainant does not contend that he did this, however, prior to June 15, 2005. Since his budget responsibility was allegedly removed prior to this, Complainant has not established a prima facie case of reprisal discrimination. Even if he protested earlier, he would have still failed to prove reprisal discrimination because he has not shown his budget responsibility was removed. Complainant was responsible for oversight of the budget. Both the Field Manager and Complainant's subordinate employee who worked on the budget stated this responsibility was not removed from Complainant.
Remaining claims
In the April 19, 2005, mid-year performance review of Complainant, the Field Manager wrote that the Field Office had less than a positive relationship with the State Office, that Complainant acknowledged his part in this, and there must be a positive relationship. He wrote that Complainant's subordinate employees were going through difficult times on both personal and work environment levels, and the Field Office could not achieve its business objectives without addressing this. Complainant was advised to address this. In a May 27, 2005, note, the Field Manager wrote that there were many administrative matters that needed to be resolved, that he kept pushing Complainant to perform, and Complainant continued to blame others or cite past situations. The Field Manager wrote that he was still not getting good financial data.
On June 17, 2005, a number of Complainant's subordinate employees allegedly complained to the Field Manager and Associate Field Manager about Complainant's supervision. The Field Manager wrote that they had concerns about comments Complainant made to them, feared retribution if they came forward, had feelings of hopelessness in this situation, and talked about filing EEO complaints. By letter dated July 7, 2005, the Field Manager notified Complainant of this, and advised that an independent team was being brought in to look into the allegations. The letter advised Complainant that he was being detailed for 120 days while the team reviewed the allegations. He was detailed for 120 days effective July 10, 2005, to the Field Offices' Land Sales and Acquisitions Division to a staff position. When asked about the employee allegations, the Field Manager stated they regarded verbal abuse and verbal non-violent threats. Complainant wrote that the inquiry team asked him questions such refusing a subordinate's request for leave when her grandmother died; telling someone that another individual was smarter than her; repeatedly making someone give up his seat for him, and so forth.
By letter dated November 3, 2005, the Field Manager informed Complainant that he was being permanently reassigned to the detail position effective November 13, 2005. He advised that the inquiry report did not indicate any issues that necessitated discipline, but suggested a long evolving erosion of trust and interpersonal relationships among the staff, and reassignment was supported by the apparent need to address the general workplace environment. Further, the letter specified staff work that needed to be done in the new position by a GS-13 level employee, for which it asserted Complainant was uniquely qualified.
Complainant questioned whether his subordinate employees came forward and complained about his supervision, and averred that his performance was good. While the record, as Complainant points out, contains little specificity about the employee complaints, we find by a preponderance of the evidence that they made strong complaints about Complainant's supervision, and management believed Complainant was taking insufficient action to address these and other concerns. This is backed up by contemporaneous documentation by the Field Manager.
In light of this, we find that the Agency detailed Complainant for the reasons given by the Agency, not reprisal discrimination (claim 3iv). We agree with the Agency's finding that Complainant was not consulted on the temporary promotion of one of his subordinate employees because it was already moving toward detailing him, so it did not see a need to get his input, not reprisal discrimination. Further, the record shows management viewed Complainant as having management performance problems, making it less likely for them to seek his input on this (claim 3ii). The same is true for claim 3v, which likely occurred after Complainant was notified of the detail. Claim 3iii, about the security review, actually concerned an audit of the processes for handling funds. There is no specified factual indication that such an audit was unnecessary, and it is likely it did not impact Complainant since notice of the audit occurred days before his detail. Complainant states claim 3vi concerned being removed from the Acting for the Field Manager list, not monthly a birthday celebration list. By this time, however, Complainant was already detailed out of management, and an inquiry was being conducted on whether there were problems with his management. Given this, we decline to find reprisal discrimination on this matter.
The FAD is AFFIRMED.
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
October 29, 2010
__________________
Date
1 The record contains a postal domestic return receipt indicating when Complainant's attorney received a FAD in case number BLM-05-0440. The record does not show when the attorney received the FAD in case number BLM-05-0449, nor does it contain a certificate of mailing for regular first class mail. Given this, we deem the appeal to be timely filed.
2 Complainant contended that the email announced the promotion of a second employee, and he was previously aware of this and approved the action.
3 The Agency dismissed one issue. Complainant does not contest this on appeal. Accordingly, we do not address the matter.
4 For purposes of analysis, we will assume without finding that Complainant is an individual with a disability.
5 Complainant stated that he was later diagnosed with allergic asthma and sleep apnea. He stated the allergic asthma is successfully treated with medication, and the sleep apnea is successfully treated with a PAP machine.
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0120093113
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093113