0120112293
07-12-2012
Larry L. Martinez, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services (Indian Health Service), Agency.
Larry L. Martinez,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services
(Indian Health Service),
Agency.
Appeal No. 0120112293
Agency No. HHSIHS04172010
DECISION
On March 16, 2011, Complainant filed an appeal from the Agency's February 24, 2011, final decision (FAD) concerning his equal employment opportunity (EEO) complaint alleging 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 Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's FAD.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Cook at the Agency's Sioux San Indian Health Service Hospital facility in Rapid City, South Dakota. On September 27, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (American Indian1), sex (male), disability (Cancer)2, age (49 and 50 years old at time of incidents), and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. From April 29, 20093, until being placed on a detail on August 9, 2010, Complainant was subjected to a hostile work environment which included oral and written reprimands, intimidation, and misuse and lack of control of sensitive information pertaining to the Complainant.
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). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Specifically, the Agency found that Complainant failed to state prima facie claims of: reprisal because he had not engaged in any prior EEO activity; race discrimination, because he could not identify similarly situated coworkers of a different race who were treated differently; or age discrimination because another coworker older than Complainant was treated differently. The Agency next found, however, that Complainant stated a prima facie claim of sex discrimination but that Management articulated legitimate nondiscriminatory reasons for its actions and that Complainant had not shown that such reasons were pretextual. Finally, the Agency found that Complainant failed to establish a claim of harassment.
CONTENTIONS ON APPEAL
Complainant argues that the Agency investigation was poorly conducted and that witnesses were not questioned. He maintains that the incidents listed in claim 1 were "not the first time" such incidents occurred. Complainant further alleges that when he has reported "misconduct" and the fact that an Agency employee had outside employment, "every time the harassment got worse." The Agency requests that we affirm the FAD.
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").
Complainant first avers that when he first began working for his current supervisor (S: Native American, female, 61 and 62 years of age during incidents, no claimed disability) on April 29, 2009, "the first thing she ever said to me . . . was 'you are having a hard time working for me because I am female.'" Report of Investigation (ROI), Exhibit F, p. 3. Complainant next maintains that on February 22, 2010 he received a Letter of Warning (LOW) from S regarding his behavior during a meeting when,
She told us during the meeting I was making mean-spirited comments towards her although she was the one speaking out and arguing. She said told [sic] me I repeatedly would accuse her of not knowing the details of her job and running downtown to buy supplies. Everyone in the kitchen also said this during the meeting, but she wrote me up because of my participation in the meeting.
Id.
On May 19, 2010, S gave Complainant an oral reprimand. Complainant avers that S had left the facility without her keys and when she came back he was working in the freezer and could not hear S "banging on the door for someone to let her inside. . . . When I was able to hear her and let her in, she got in my face and started yelling at me and said I didn't let her in because it was her." ROI, Exhibit F, p. 3. Complainant then told S he was going to the doctor but "she told me I didn't have leave approval, but [another official] excused me for that day and the following day." Id. Complainant avers that on July 14, 2010 he received a written reprimand for the May 19 incident and that "she waited two months to give me the written reprimand because I reported her for the incidents involving her taking money from the register on May 25, 2010." Id. Complainant maintains that on July 20, 2010 "[S] left my written reprimand on the kitchen break table exposed for others to see while she was sitting at the table" and that he subsequently learned from two coworkers who had seen it. Id. In addition, Complainant avers that S "generally complains to me about things not done to her specifications" and that S "has harassed me because of time and attendance issues even though I supplied doctor's notes for my absences." Id.
S averred that Complainant "has a severe temperament issue" and that during the February 2010 incident "he made mean-spirited comments towards me . . .. He told me repeatedly that I did not do my job . . .. He also said that I lack intelligence and complained about my management style. I informed him that his future communication with me would be in a respectful manner . . . via a letter of warning." ROI, Exhibit H, p. 2. With regard to the May 2010 incident, S averred that she stepped out of the kitchen briefly to "attend to someone who tried to ring the bell to enter the kitchen." Id. She said that after she was locked out she rang the doorbell for Complainant to let her back in and that he,
was in full view of me and refused to answer the door. I had to get the head of security to let me in, and [Complainant] angrily accused me of losing my keys when I was let back inside the kitchen. Two witnesses including the head of security witnessed his behavior and submitted statements.
Id.
S denied ever making the comment regarding Complainant having a hard time working with her because she was female, and further denied leaving the LOW out on the table for others to see. See id.
In rebuttal, Complainant denies that he was disrespectful towards S or lost his temper, and denied that he ever told her that she lacked intelligence. ROI, Exhibit G, p. 1. With regard to the May 2010 incident, Complainant avers that S did not step out briefly but instead "was gone for around an hour . . .. I had looked for her earlier and . . . could not find her," and further, that S
is lying about me being in full view. . . .. I was in the freezer when she apparently attempted to come inside. You cannot hear a doorbell or phone there. She immediately confronted me with an angry tone of voice. I asked her where her keys were and when she became confrontational, I left.
Id.
Complainant further contends that, with regard to the LOW being left out for others to see, "there are individuals who can attest that the document was left out." Id. A coworker (CW1: American-Indian, female, 60 to 62 years old during the incidents, no claimed disability) averred that "there were several different occasions where [S] left information out. . . . [S] left [out] a paper pertaining to [Complainant]. [Complainant] showed me the paper that she left out." ROI, Exhibit I, p.2. Another coworker (CW2: Native-American, female, 25 to 26 years of during the incidents, no claimed disability) averred that "I found a formal letter of disciplinary action against [Complainant] lying on the kitchen counter. I am pretty sure it sat there for two or three days." ROI Exhibit J, p. 2.
When asked about Complainant's allegations that S's actions were based on his race, sex, age, disability, and/or prior EEO activity, CW1 averred that "I think it has a lot to do with the fact that [S] has never worked in a kitchen and [Complainant] has worked in a kitchen for 26 years. When we would try and tell her something she would respond 'you are not the supervisor - I am.'" ROI, Exhibit I, pp.2-3. However, CW1 also stated that "I think [Complainant's] sex is a factor," in the way S interacted with him. Id. Both CW1 and CW2 averred that on one occasion, S was cleaning out the men's locker room after the only other male employee besides Complainant had left, when S said that after Complainant left there would not be any men working in the kitchen again. See ROI, Exhibits I & J. CW2 further averred that "that is the only specific evidence I have seen or heard as far as discrimination." Exhibit J. Finally, CW1 averred that "at times, [Complainant] has refused to follow her orders, and she has written him up for it. He does have a temperament issue but he has mellowed out some." ROI, Exhibit I p. 3.
In considering whether any of the above actions, whether individually or collectively, constitute harassment, the Commission notes that in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant's employment. See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (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. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Furthermore, in assessing whether the complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. � 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request No. 05970077 (March 13, 1997). However, as noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment." The Court noted that such conduct "must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and . . . that the victim in fact did perceive to be so." Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001).
Following a review of the record, we find that Complainant has not met his burden of establishing that he was subjected to harassment based on his protected bases as alleged. When asked when he previously participated in the EEO process, Complainant referred to a non-EEO matter when he reported S to management for allegedly taking money out of a cash register, see ROI, Exhibit F, pp. 1-2, but the record does not indicate that Complainant engaged in any prior EEO activity. With regard to race, age, disability, or sex, we note that Complainant has not shown that the actions complained of either involved or were based on such factors. The record does indicate that on one occasion S made a comment that could be construed as sexist, but it is not clear from the context whether S was expressing animus towards men or simply noting the fact that if Complainant did not return from his detail, the kitchen would consist of all-female employees since he had been the only remaining male. Furthermore, the testimony of Complainant's coworkers indicates that any hostility or tension between Complainant and S could have been due to the fact that he had 26 years' experience working in kitchens while S had none and she did not appreciate being given advice from any of her subordinates, not just Complainant. We note that CW1 averred that that on one occasion S wrote up a female cook who was too busy working to respond to S's "good morning" greeting and further, that S "will not take any advice or constructive criticism from her peers." ROI, Exhibit I, p. 3. Finally, according to Complainant's own testimony, the issuance of the LOW and S's actions in allegedly leaving the LOW out for others to see could have been in retaliation for the fact that Complainant reported her for taking cash out of the register, see ROI, Exhibit F, p. 3, which is not the type of retaliation covered under EEO regulations.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not met his burden of establishing, by a preponderance of the evidence, that discrimination occurred. We therefore AFFIRM the FAD.
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
July 12, 2012
__________________
Date
1 We note that in his Formal Complaint, Complainant identifies his race as American Indian but in his affidavit he describes his race as Mexican-Indian, while the FAD identifies his race as Native American.
2 For purposes of this decision the Commission assumes without finding that complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1).
3 The Agency addressed the April 2009 incident in the body of the FAD, but in its description of the claim the FAD stated that the harassment began on May 19, 2010.
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0120112293
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112293