0120033857
02-01-2007
Michael A. Rainbolt, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Michael A. Rainbolt,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01200338571
Hearing Nos. 280-A3-4018X, -4019X, & -4020X
Agency No. 4-02-4062
DECISION
JURISDICTION
On June 18, 2003, complainant filed an appeal from the agency's May
14, 2003 final order 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. and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The appeal
is deemed timely and is accepted pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission affirms in part and reverses
in part the agency's final order.
BACKGROUND
During the relevant period, complainant was employed as an Airway
Telecommunications Systems Specialist (ATSS) at a Kansas facility of
the agency. On November 20, 2001, complainant initiated contact with
an EEO Counselor and, on December 31, 2001, filed a formal EEO complaint
alleging that the agency discriminated against him based on race (Native
American), disability (psoriasis and rheumatoid & psoriatic arthritis),
and reprisal for prior EEO activity when: (1) in November 2001, it
failed to select complainant for a Communication Specialist position,
Automation Specialist position, Environmental Specialist position or
Telecommunications Specialist position, and selected less qualified
candidates; and (2) since September 1998, it subjected complainant to a
hostile work environment. Specifically, as to (2), complainant asserted
that he reported the harassment to agency management on several occasions,
without appropriate response.
The agency conducted an investigation of complainant's claims. At the
conclusion of the investigation, the agency provided complainant with a
copy of the report of investigation, and a notice of the right to request
a hearing before an EEOC Administrative Judge (AJ) or an immediate final
decision by it. Complainant requested a hearing, and on March 18 and 19,
2003, an AJ conducted a hearing on complainant's claims. The information
that follows emerged during the fact-finding stages of the EEO process.
Per a letter from the National Psoriasis Foundation, in the record,
psoriasis is a non-contagious disease that can range from a single
fingernail pit, to a small blemished fraction of skin surface area, to
total body skin disfigurement or crippling arthritis. Complainant stated
that psoriasis is a condition in which the body's belief that it needs
to heal itself accelerates, resulting in excessive skin flaking that
can cause redness, extensive painful itching, and possibly bleeding.
Complainant testified that he has severe psoriasis on the back and
front of his limbs and has been diagnosed with it over at least 70%
of his body. He testified that he has had psoriasis all of his life,
but it worsened due to the lack of sunlight when he moved to Alaska
for a prior position. Complainant added that the skin condition of his
psoriasis alone does not necessarily limit his abilities, but that he
does have accompanying arthritis, which causes his joints to swell and
results in constant pain.
Complainant testified that he was diagnosed with rheumatoid arthritis
in 2000, and later with psoriatic arthritis. He testified that the
arthritis affects his hips, ankles, knees, shoulders, wrists, and back,
and requires him to use a cane 90% of the time. Complainant stated that
his legs do not support him and can give out at any time, so the only time
he does not use a cane is at home because he can move at a slower pace
and lean on chairs if necessary. He stated that he gets shooting pains
which cause the painful part of his body to become "lame," and that his
physician would like him to use a cane all the time. Complainant added
that there are occasions in which he needs two canes to maneuver around,
and sometimes he requires assistance to and from his vehicle or his
work area. Complainant acknowledged that his physicians have prescribed
pain medications, but explained that, due to his religious beliefs and
the potential for side effects, he only uses aspirin and vitamins and
herbs recommended by his physicians or pain management skills. He stated
further that he cannot take medications that may impair his driving and
affect his ability to work.
Complainant stated that his arthritis prevents him from climbing a ladder
as one job task requires. In this regard, he testified that he cannot
change an ESIS, a projector that displays weather or other information
on the ceiling, because it is necessary to climb a ladder to reach it
and he can not do that. He testified that other personnel bring the
equipment down so that he may perform routine maintenance on it.
Complainant provided medical articles about the condition of psoriasis.
In addition, for his arthritis, complainant provided documentation
from his physician, dated January 24, 2002, stating; "I have reviewed
physical requirements for [complainant's position]. He may do all of
these requirements except he should be restricted from using ladders due
to safety concerns with imbalance." Subsequently, complainant provided
follow-up documentation from his physician, stating; "climbing ladder
restriction is permanent."
Complainant stated that management was aware of his impairments and
that he asked the agency to assist him in finding another job because
there is a high probability that he will not be able to do his ATSS job
in the future because, due to his arthritis, he will need a job that
he can perform from a wheelchair. He stated that the agency failed to
select him for the positions he requested.
Further, complainant stated that he requested another job from management
because he wanted to get away from his coworkers' harassment. Complainant
stated that the constant hostility from his coworkers made him not want
to go to work, and that the stress from the environment worsened his
psoriasis.2 The record indicates that complainant and his coworkers
share some workspace and equipment, although they did not necessarily
work together during the same hours. Complainant mainly worked the
"swing" shift from 4 p.m. to 2 a.m., and indicated that he sometimes
worked alone during this shift.
Complainant testified that, during the summer of 1999, a coworker
(C1) sent a negative email to complainant's then-supervisor (S1).
C1 acknowledged sending the e-mail message. He wrote, in pertinent part:
I would like to let it be known that the situation with [complainant's]
skin shedding is getting a bit hard to bare[sp]. . . . [T]he backs
and seats of chairs literally covered with [complainant's] dead skin,
phones inundated with his skin, desk tops and work surfaces covered with
flakes of vile particles of [complainant's] flesh makes me ill. . . .
Moreover the possibility of ingesting the particles and flacks[sp] of
his dead skin through the air and physical contact is to say the least
is frightening. . . . I can not speak for my coworkers but I think
several of them fill[sp] the same way. . . . I know [complainant] is
suffering both mentally and physically with this affliction. But we
should not have to suffer with him due to his unsanitary habits of
leaving his remains on common equipment and work surfaces we share.
Complainant stated that, in April 2002, a coworker (C2) made a racially
disparaging joke, to which complainant responded that the joke was
offensive. Further, complainant stated that, two days later, C2 used
obscene and racially derogatory language toward him.3
Complainant further stated that, on an ongoing basis, most of his
coworkers refused to communicate with him, including refusing to
convey essential work-related information between tours of duty.
He stated that they only spoke to him if they needed something from him.
He added that his coworkers, except C3, have said that he does not bathe;
that he could do something about the shedding problem if he wanted to;
that they do not want to sit in a chair or use equipment used by him for
fear of catching psoriasis; and that he has psoriasis because he leads a
"sinful" life. Complainant stated that coworkers have left "post-it"
notes on his desk saying that he needed to take a bath and, in late 2001,
someone left a newspaper article in his mailbox with handwriting stating;
"Here is an experimental laser treatment, Why don't you have it done?
It will help keep your flakes off our equipment."
C3 corroborated complainant's contentions of an environment negative
toward him. Specifically, C3 stated "[the coworkers] would rather that
[complainant] were not there." Further, C3 said that coworkers did not
talk to complainant unless they needed to speak with him as a last resort
for information, and coworkers felt that there were no consequences for
their actions so they acted as they wanted. In addition, C3 indicated
that the only action he saw management take was S1 distributing pamphlets
about psoriasis and supplying the office with disinfectant and wipes.
He added that S2 generally tried to ignore the matter.
Another coworker (C6) acknowledged that he thought complainant's skin
shedding was "pretty annoying and nasty" and that he told complainant
that he should not be at the workplace if he could not climb a ladder.
C6 added, "[Coworkers] only have one problem with [complainant] and that
is his cleanliness problems and they would appreciate if he would clean
up after himself." Another coworker, who served as acting supervisor
(C7), acknowledged that she witnessed others push complainant's chair far
away from the work area. Further, C7 stated that she has heard coworkers
question complainant's bathing habits and refuse to sit in a chair used by
complainant. C1 stated that he would speak to complainant, but "I do stay
away from the phone he is usually using and don't share snacks with him [,
b]ut I don't make this obvious." C8 stated that coworkers would mention
concerns to her regarding complainant's psoriasis so that she could
pass it on to management. C8 explained, for instance, "[o]ne example
of the concerns was someone once took a computer keyboard and turned it
over and a large amount of skin fell [out]." Another coworker stated
that he has heard people make disparaging remarks about complainant,
including a fellow employee who referred to complainant as a "dog."
Finally, another coworker (C9) stated; "It's ridiculous when you come to
work and the debris is on the chairs and phones and [complainant] walks
away . . . [no]one wants to be the bad person and we have brought this
to the attention of management, we have a common work area and I don't
know if we can catch something or not." Coworkers stated that S2 would
clean the shared area of skin debris when complainant failed to do so.
The consensus among most of complainant's coworkers was that complainant
created a hostile work environment for himself and others by failing to
clean shared areas and equipment of his skin debris and having body odor.
Some of them added that complainant's personality was less than desirable.
Complainant's coworkers stated that they did not express their opinions in
complainant's presence, but they did remind him consistently to clean-up
after himself.
Complainant asserted that his coworkers greatly exaggerated the extent
of his skin flaking and denied that he did not maintain proper personal
hygiene. Complainant acknowledged that he sheds some skin, but stated
that he cleans up after himself and takes measures to minimize the effects
of his psoriasis on others. For instance, complainant stated that he
attempts to minimize skin shedding by wearing long sleeve shirts, even
during hot weather, and tries to minimize the view of his impairment
by wearing a vest so that the blood on his back can not be seen.
In addition, complainant stated that he has tried sunlamps, oatmeal
baths, creams and topical ointments for the symptoms of his psoriasis,
some of which he acknowledged have odors. Complainant also pointed
out, "I work a swing shift, which is from four [p.m.] to two [a.m.],
and a cleaning party usually comes in and vacuums the area between
10:30 and [2] every day, that . . . makes you wonder where's all the
[alleged] flakiness coming from . . . I can't lose that much skin."
C3 corroborated complainant's contentions, including the fact that the
coworkers are exaggerating the extent of the skin flaking. For example,
C3 indicated that complainant visited his home on many occasions socially,
and he never needed to clean up after complainant due to flaking skin.
C3, who often worked overlapping shifts with complainant, also testified
that he witnessed complainant cleaning up after himself at work, noting
that complainant tried to always sit on the same chair and use the same
computer and cleaned up the area after using it.
Rather than assisting him with his coworkers, complainant alleged that
management encouraged isolation between himself and the rest of the unit.
In his closing testimony, complainant stated, "people just don't want to
deal with [the psoriasis] and they feel there [are] no consequences."
He noted that there is no record of discussions by management with
coworkers regarding his impairment. Coworkers acknowledged, in
affidavits, that they were not disciplined for voicing their opinions or
concerns regarding complainant's psoriasis. Complainant stated that the
only action taken by management was distributing psoriasis pamphlets to
all staff. Further, complainant alleged that management allowed rumors
that he was a trouble-maker and that he did not do any work.
Regarding the alleged hostile work environment, complainant's former
supervisor, S1, testified that there has been a problem regarding
complainant's psoriasis and he tried to educate the coworkers about it
and asked complainant to clean up after himself. Complainant's current
supervisor, S2, stated that S1 gave him the medical information regarding
psoriasis that he distributed to employees and informed him of what
he did to keep the area clean, e.g., provided sanitary wipes and a
vacuum cleaner. S2 stated that he asked complainant to clean up after
himself and explained to coworkers that complainant may not be able
to minimize his flaking skin. S2 stated that complainant mentioned
that he had received a disability vehicle placard from his physician
which prompted S2 to send complainant a letter inquiring whether he
needed accommodation, to which complainant responded that he did not.
S2 elaborated that the only accommodation that complainant required was
for someone to assist him with tasks that required climbing a ladder.
On March 20, 2003, the AJ issued his Findings of Fact and Conclusions of
Law regarding complainant's claims. He found that complainant had not
established that he met the definition of an individual with a disability
with respect to his psoriasis, stating that he failed to show a physical
impairment that substantially limited one or more major life activities.
However, alternatively, the AJ found further that complainant is an
individual with a disability with respect to his arthritis, stating
that he is substantially limited in the major life activity of walking.
Regarding claim (1), the AJ concluded that complainant failed to show
that he was the best qualified candidate for the positions at issue.
As to claim (2), the AJ also found no violation of the law because he
could not conclude complainant was covered by the Rehabilitation Act
because of his psoriasis, but noted:
I would be remiss to ignore the fact that there is, without doubt,
workplace hostility directed toward Complainant as a result of his
psoriasis. . . . [T]here is sufficient evidence to support a conclusion
that [c]omplainant is ostracized and at times treated as a pariah by some
of his coworkers. While such a situation is not illegal under the laws
enforced by the Commission, neither does the situation appear conducive
to a healthy and cohesive federal work environment. . . . [H]ad there
been evidence adduced which would support a finding that Complainant was
and/or is regarded as disabled as a result of his psoriasis, this Bench
Decision would have contained a lengthy, lengthy section on remedies
[based on a finding of discrimination].
In a decision dated May 14, 2003, the agency accepted and fully
implemented the AJ's decision. The instant appeal followed from
complainant.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
As an initial matter, the Commission notes that portions of the hearing
in this case were held by telephone at the AJ's behest, without the
objection of the parties. The Commission has held that testimony may not
be taken by telephone in the absence of exigent circumstances, unless
at the joint request of the parties and provided specified conditions
have been met. See Louthen v. United States Postal Service, EEOC Appeal
No. 01A44521 (May 17, 2006).4 However, since the facts of this case
pre-date Louthen we will assess the propriety of conducting the hearing
telephonically by considering the totality of the circumstances. Here,
it is unclear whether exigent circumstances existed. On the other hand,
it is clear that there were no issues of witness credibility that might
have been impacted by the taking of testimony telephonically. Under these
circumstances, even if it is assumed that the AJ abused his discretion
in this case by taking testimony telephonically, the Commission finds
that his action constituted harmless error.
Non-Selections
In analyzing a disparate treatment claim, where the agency denies that
its decisions were motivated by complainant's protected class(es) and
there is no direct evidence of discrimination, we apply a burden-shifting
method of proof. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973);
see Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001); see
also Hochstadt v. Worcestor Foundation for Experimental Biology, Inc.,
425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976).
First, complainant must establish a prima facie case 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. McDonnell Douglas,
411 U.S. at 802. Next, the agency must articulate a legitimate,
nondiscriminatory reason(s) for its actions. Id. If the agency is
successful, then the complainant must prove, by a preponderance of the
evidence, that the legitimate reason(s) proffered by the agency was a
pretext for discrimination. McDonnell Douglas, 411 U.S. at 804.
After a careful review of the record, as to claim (1), the Commission
finds that the AJ's finding of no discrimination is supported by
substantial evidence. The prima facie inquiry may be dispensed
with in this case since the agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U. S. Postal Service Board
of Governors v. Aikens, 460 U.S. 711 (1983). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is a pretext for discrimination. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
Here, the Commission finds that, assuming arguendo, complainant
established a prima facie case of discrimination based on race, disability
and reprisal, the agency articulated legitimate, nondiscriminatory reasons
for its actions - that better qualified applicants were selected for the
disputed positions. See McDonnell Douglas, 411 U.S. at 802; Lawson,
245 F.3d at 922; Hochstadt, 425 F. Supp. at 324. We concur with the
AJ's finding that complainant failed to prove, by substantial evidence
in the record, that the agency's legitimate, nondiscriminatory reasons
for its actions were pretextual. Thus, we affirm the AJ's conclusion
that complainant failed to prove that the agency discriminated against
him based on race, disability, or reprisal as to the above-mentioned
non-selections.
Hostile Work Environment
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
Harassment is actionable only if the conduct to which the complainant
has been subjected was sufficiently severe or pervasive to alter the
conditions of the complainant's employment. See Cobb v. Dep't of
the Treasury, EEOC Request No. 05970077 (March 13, 1997); Humphrey
v. U. S. Postal Service, EEOC Appeal No. 01965238 (October 16, 1998).
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 (March 8, 1994).
In a 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. See 29 C.F.R. � 1604.11(d).
a. Race and Reprisal
With respect to complainant's claim of harassment based on race and
reprisal, we find that the substantial evidence of record supports the
AJ's finding of no discrimination. Complainant failed to show that he
was subjected to severe or pervasive harassment by his coworkers because
of his race or prior EEO activity.5
b. Disability
On the other hand, regarding complainant's claim of harassment on the
basis of disability, the Commission finds that the substantial evidence
of record does not support the AJ's finding that complainant was not
discriminated against on the basis of disability, and we find that with
respect to this basis, a preponderance of evidence in the record shows
that discriminatory harassment did occur. To establish disability-based
harassment, complainant must show that: (i) he is a qualified individual
with a disability [ii] who was subjected to unwelcome harassment
[iii] based on his disability [iv] that was severe or pervasive
enough to affect a term, condition, or privilege of his employment.
See Flowers v. Southern Reg'l Physician Serv. Inc., 247 F.3d 229, 235-36
(5th Cir. 2001); Fox v. General Motors Corp.; 247 F.3d 169, 177 (4th
Cir. 2001), Bradley v. Widnall, 232 F.3d 626, 631 (8th Cir. 2000)).
We find that complainant, in the instant case, satisfied this test.
i. Qualified Individual with a Disability
As an initial matter, an individual with a disability is one who: 1) has
a physical or mental impairment that substantially limits one or more of
that person's major life activities; 2) has a history of such impairment;
or 3) is regarded as having such an impairment. 29 C.F.R. � 1630.2(g).
A physical impairment is "[a]ny physiological disorder, or condition,
cosmetic disfigurement, or anatomical loss affecting one or more of
the following body systems: neurological, musculoskeletal, special
sense organs, respiratory (including speech organs), cardiovascular,
reproductive, digestive, genito-urinary, hemic and lymphatic, skin,
and endocrine." 29 C.F.R. � 1630.2(h). In 29 C.F.R. � 1630.2(j),
"substantially limited" is defined as the inability to perform a major
life activity that the average person in the general population can
perform; or significantly restricted as to the condition, manner, or
duration under which the average person in the general population can
perform that same major life activity. Major life activities include,
but are not limited to, the function of caring for one's self, performing
manual tasks, walking, seeing, hearing, speaking, breathing, learning,
and working. 29 C.F.R. � 1630.2(i); see Appendix to 29 C.F.R. Part 1630
- Interpretive Guidance on Title I of the Americans with Disabilities
Act (Appendix to 29 C.F.R. Part 1630). A qualified individual with
a disability is one who satisfies the requirements for the employment
position he holds or desires and can perform the essential functions
of that position with or without reasonable accommodation. 29 C.F.R. �
1630.2(m).
In this case, we find that the record establishes that complainant's
psoriasis has caused arthritis that substantially limits him in the
major life activity of walking. Complainant stated that his joints
swell, that his legs do not support him and can give out at any time,
and that he is in constant pain. Further, complainant stated that he
uses a cane, sometimes two, all of the time, except when he is at home
and that parts of his body occasionally become "lame." He noted that his
physician would like him to use a cane all the time. Complainant added
that he uses natural remedies and pain management rather than prescribed
medications for his consistent pain. Since the limitations in walking
caused by complainant's arthritis are substantial, complainant satisfies
the statutory definition of an individual with a disability.
The record also establishes that complainant is qualified to perform the
essential functions of his position. Essentially, it is undisputed that
complainant could perform the essential functions of his position and,
as corroborated by complainant's supervisor - S2, only required assistance
with climbing a ladder, which does not appear to be an essential function.
Based on the evidence of record, we find that complainant is a qualified
individual with a disability.
ii and iii. The Harassment was Unwelcome and Based on
Disability
It is undisputed that complainant has psoriasis and that his psoriasis
is accompanied by excessive skin shedding and arthritis. It is further
undisputed that, one coworker, C6, told complainant that he should
not be at the workplace if he can not climb a ladder, and that most
of complainant's coworkers complained constantly about complainant's
skin condition. The evidence shows that complainant's coworkers did not
want to sit in chairs or use equipment used by complainant for fear of
catching psoriasis, thought his skin debris resulted from poor personal
hygiene, characterized his skin shedding as "vile" or "frightening" or
"pretty annoying and nasty," did not want to eat around complainant,
questioned complainant's bathing habits, indicated he had the skin
condition because of his "sinful" lifestyle, made disparaging remarks
about complainant, and ostracized him.
Complainant stated that coworkers would leave notes on his desk
instructing him to bathe or seek medical treatment. Complainant
alleged that management encouraged the isolation by failing to address
it appropriately. C3 corroborated complainant's contentions about the
negative environment toward him and added "[the coworkers] would rather
that [complainant] were not [in the workplace]." One coworker stated that
he did not like to eat around complainant, and several coworkers stated
that they did not like to use the same chair or equipment as complainant.
Further, we note the AJ's statement, following a hearing, that there was
definitely workplace hostility toward complainant due to his psoriasis.
For these reasons, we find that complainant did not welcome the conduct to
which he was subjected and that the conduct was based upon his psoriasis
which was characterized by various symptoms.
iv. The Harassment Affected a Term, Condition, or
Privilege of Employment
We find that complainant has shown that the harassment was sufficiently
pervasive that it created an intimidating, hostile, or offensive work
environment, such that he did not want to go to work. In this regard, we
note the previously-cited testimony of complainant, C3, and complainant's
other coworkers regarding the way in which complainant was treated due
to his flaking skin - a symptom of his psoriasis. In reaching this
conclusion, we acknowledge that agency management may clearly require
an employee to clean his/her individual or shared workspace and that
his/her fellow employees may voice concerns through the supervisory chain
if s/he fails to do so. However, in the instant case, the coworkers'
conduct was beyond voicing legitimate concerns. The evidence indicates
that the coworkers exaggerated the extent of the skin shedding problem
as corroborated by witness testimony, and that a custodian cleaned the
workspace everyday during the last half of his shift. The vitriolic
nature of their attitude towards complainant's condition was revealed
in their emails and notes when, for example: C1 wrote that seeing the
"vile particles of ... flesh makes me ill," and described the situation
as "frightening;" C6 called complainant's psoriasis "nasty" and said he
should not be in the workplace if he can not climb a ladder; C7 indicating
that he tries not to use the same telephone as complainant and not share
snacks with him; another coworker referred to complainant as a "dog";
and C9 expressing a fear about catching "something" from complainant.
This list is not exhaustive, but it clearly shows the coworkers'
conduct here was beyond simply uncivil. Rather, it was "so objectively
offensive as to alter the 'conditions' of the [complainant's] employment."
Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998).
Thus, under the facts of this particular case, we conclude that the
weight of the evidence establishes that complainant was unlawfully
subjected to a hostile work environment because of his disability.
v. Liability
The final issue is whether the agency should be held liable for the
actions of complainant's co-workers. The record revealed that agency
management was clearly aware of the coworkers' actions over a prolonged
period of time, and that the only action they took was to distribute
pamphlets in the workplace about psoriasis. Coworkers stated that
they were not counseled or disciplined for their actions. We find
that the agency did not fulfill its obligation to take prompt remedial
action reasonably calculated to end the harassment once it learned of
complainant's allegations and that it did not take appropriate steps to
ensure that the harassment would not recur. See 29 C.F.R. � 1604.11(d).
CONCLUSION
After a careful review of the record, including complainant's contentions
on appeal and arguments and evidence not specifically addressed in this
decision, we AFFIRM the agency's decision as to claim (1) concerning
the November 2001 non-selections. However, we REVERSE the agency's
final decision regarding claim (2), finding that the preponderance of
the evidence proves that complainant was subjected to a discriminatory
hostile work environment since 1998 because of his psoriasis. In order
to remedy complainant for this discrimination, the agency shall comply
with the Order below.
ORDER
The agency is ordered to take the following remedial actions:
(1) The agency shall take steps to insure that complainant is no longer
subjected to harassment by his coworkers and management. The agency
shall monitor aggressively the environment to accomplish this.
(2) The agency shall provide EEO sensitivity training to all employees
in the office at issue, designed to eliminate acts of harassment in
the workplace.
(3) The agency shall consider taking disciplinary action against the
responsible management officials and the coworkers who engaged in the
harassing conduct. The agency shall report its
decision in its compliance report to EEOC. If the agency decides to take
disciplinary action, it shall identify the action taken. If the agency
decides not to take disciplinary action, it shall set forth the reason(s)
for its decision not to impose discipline. It should be noted that the
Commission does not consider training to be a disciplinary action.
(4) The agency shall conduct a supplemental investigation pertaining to
complainant's entitlement to compensatory damages incurred as a result
of the agency's discriminatory actions in this matter. The agency
shall afford complainant sixty (60) days to submit additional evidence
in support of a claim for compensatory damages. Complainant shall
submit objective evidence (pursuant to the guidance given in Carle
v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993))
in support of his claim. Within forty-five (45) days of its receipt
of complainant's evidence, the agency shall issue a final decision
determining complainant's entitlement to compensatory damages, together
with appropriate appeal rights.
(5) The agency shall post copies of the attached notice in accordance
with the statement entitled "Posting Order."
(6) The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Garnett, Kansas facility copies of
the attached notice. Copies of the notice, after being signed by the
agency's duly authorized representative, shall be posted by the agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. The agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 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), 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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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:
______________________________
Stephen Llewellyn
Acting Executive Officer
Executive Secretariat
February 1, 2007
__________________
Date
1 Originally, this appeal was identified as docket number 01A33857.
Due to changes in EEOC's computerized records tracking system, the appeal
docket number has been restyled to 0120033857.
2 We note that complainant provided articles stating that stress affects
psoriasis negatively.
3 The record revealed that an accountability board conducted an
investigation and C2 was issued a written admonishment for his actions.
4 In Louthen, the Commission has promulgated its policy regarding the
taking of telephonic testimony in the future by setting forth explicit
standards and obligations on its Administrative Judges and the parties.
Louthen requires either a finding of exigent circumstances or a joint
and voluntary request by the parties with their informed consent.
When assessing prior instances of telephonic testimony, the Commission
will determine whether an abuse of discretion has occurred by considering
the totality of the circumstances. In particular, the Commission will
consider factors such as whether there were exigent circumstances,
whether a party objected to the taking of telephonic testimony, whether
the credibility of any witnesses testifying telephonically is at issue,
and the importance of the testimony given telephonically. Further, where
telephonic testimony was improperly taken, the Commission will scrutinize
the evidence of record to determine whether the error was harmless.
5 We find that the incidents, in April 2002, involving a racially
derogatory joke and remark by C2 were sufficiently isolated that they did
not create a hostile work environment for complainant based on his race.
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01A33857
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, DC 20507
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0120033857