01A11301
09-26-2002
Robert A. Muldonian, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Robert A. Muldonian v. Department of the Army
01A11301
September 26, 2002
.
Robert A. Muldonian,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A11301
Agency Nos. 94-03-0123 and 94-05-0081
Hearing Nos. 120-97-4241X and 120-97-4242X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaints of unlawful
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.;<1> and the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission AFFIRMS the agency's final order.
BACKGROUND
The record reveals that complainant, a Contract Specialist, GS-1102-13,
at the Army Research Laboratory (ARL), in Adelphi, MD, filed a formal EEO
complaint on January 24, 1994, and a second complaint on May 4, 1994,
alleging that the agency had discriminated against him on the bases of
physical disability (diabetes and high blood pressure), mental disability
(depression and anxiety), age (D.O.B. 3/30/46), and reprisal for prior
EEO activity.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination. The AJ defined the issues as follows:
Case No. 94-03-0123 (Claim 1)
Did the agency unlawfully discriminate against complainant when he was
subsequently harassed and was subjected to disparate treatment in the
review of his work and monitoring of his conduct which constitutes a
continuing violation from March 1993 through November or December 1994.<2>
Case No. 94-05-0081 (Claim 2)
Did the agency unlawfully discriminate against complainant in reprisal for
having filed the aforementioned EEO complaint, when on March 14, 1994,
the Director of Infrastructure (DI) submitted unfavorable supervisory
statements assessing complainant's performance during a 120 day detail in
connection with complainant's disability retirement application SF 2824B.
From July 1979 to March 1993 complainant worked as a Procurement
Analyst, GS-1102-13, in the Procurement Directorate at ARL. Because of
an agency reorganization, complainant was reassigned to the Contracts
Branch as a Contract Specialist, GS-1102-13. Complainant was diagnosed
with diabetes in 1989. Excessive or sustained stress has a detrimental
effect on complainant's blood sugar level and on his high blood pressure.
During late 1993 or early 1994, complainant developed major depression
and anxiety.
Concerning claim 1, after his reassignment, complainant alleged that
his first level supervisor (S1), second level supervisor (S2), and his
third level supervisor (S3) subjected him to harassment and disparate
treatment because of his age and disabilities. Complainant alleged
that his placement into the Contracts Branch aggravated his diabetes and
blood pressure; that the agency failed to recognize and accommodate his
disabilities; that he was harassed when he was watched more closely than
others regarding his absences and use of the �dot board�<3>; that he was
harassed when he was charged AWOL, when he was counseled and disciplined;
when he was issued a five-day suspension; when he was admonished for
eating at his desk; and when office policies were selectively enforced
against him.
Concerning claim 2, because complainant had contended that the stress
of working in the Contracts Branch was adversely affecting his health,
he was detailed for 120 days to the Infrastructure Directorate and was
placed under the supervision of DI. In March 1994, complainant began
the process of filing his application for disability retirement and
DI prepared an unfavorable statement to be used with the application.
Complainant objected to the statement and alleged that DI prepared the
statement in reprisal for claim 1. DI's statement was not included in
complainant's application for disability retirement, and complainant
used a statement from S1.<4>
Concerning claim 1, the AJ found that complainant failed to establish
a prima facie case of age discrimination because complainant failed
to present evidence that similarly situated employees under the age
of forty who performed their duties in a similar manner were treated
more favorably. The AJ, assuming, arguendo, that a prima facie
case of age discrimination was established, found that the agency
articulated legitimate, nondiscriminatory reasons for its actions, and
that complainant did not establish pretext. Turning to the disability
discrimination claim, the AJ found that complainant was not a qualified
individual with a disability because he could not perform the essential
duties of his position either with or without reasonable accommodation,
but also found that complainant was not treated any differently than
any other employee who did not perform their duties, did not properly
request leave, and did not follow their supervisor's instructions.
The AJ further noted that the agency made a good faith effort to
reasonably accommodate complainant.
Concerning claim 2, although the AJ found that complainant had established
a prima facie case of reprisal, the AJ also found that DI's written
statement was factually correct; reflected an accurate description
of complainant's performance; was prepared to assist complainant in
obtaining disability retirement; and when objected to by complainant was
not used in complainant's disability application. The AJ further found
that complainant failed to demonstrate that DI's reason for writing the
statement was due to discriminatory animus in relation to complainant's
prior EEO activity.
The agency adopted the AJ's decision without modification.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the AJ erred when he did not
properly define the issues; did not make a proper analysis of the
reprisal claims, the harassment claims, and the age discrimination claim;
and did not use all applicable theories in his analysis of complainant's
disability discrimination claims.
In response, the agency states that complainant has not demonstrated
reversible error, and has not proven discrimination based on age,
disability, or reprisal. Further, the agency contends that it did not
accept the issue complainant is now asserting on appeal.
ANALYSIS AND FINDINGS
The agency's determination of the accepted claims was not objected to
by complainant, either before or during the AJ's hearing. Complainant,
on appeal, submits that his case states a claim of harassment and hostile
work environment based on disability, reprisal, and age which culminated
in complainant's constructive discharge due to the agency's failure
to provide complainant with reasonable accommodation. The issue of
constructive discharge was not previously raised by complainant, was not
accepted by the agency, and was not investigated. While the Commission
has the authority to reframe charges and use available materials and
information to articulate a lay complainant's charges, we do not agree
that the AJ erred when he heard the accepted issues of the case, and did
not, sua sponte, reframe the charges to include constructive discharge.
The significant factor is that charges are to be construed liberally in
order to protect the rights of a layperson who is without legal advice.
We note that complainant had the advice of an attorney at the hearing,
and at the fact-finding conference was assisted by a representative. <5>
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.
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, religion, or protected
activity under the anti-discrimination statutes is unlawful, if it is
sufficiently patterned or pervasive. McKinney v. Dole, 765 F.2d 1129,
1138- 1139 (D.C. Cir. 1985). In Trammel v. United States Postal Service,
EEOC Appeal No. 01871154 (May 10, 1988), the Commission stated that
to demonstrate a prima facie case of a hostile working environment
complainant must show: (1) that he belongs to a protected group; (2)
that he was subjected to unwelcome harassment; (3) that the harassment
complained of was based on his protected status; (4) that the harassment
affected a term, condition or privilege of employment; and (5) that the
agency knew or should have known of the harassment.
The record reflects that complainant was an experienced procurement
analyst in the GS-1102 series when he was reassigned as a contract
specialist; that his new position was basically a change of name; and
that the positions were interchangeable. The record further reflects that
complainant was unhappy about the reassignment, immediately expressed his
desire to work in another section, and believed that he was incapable of
doing contract specialist work. The record also reflects that complainant
had not dedicated his efforts to performing his job; had not performed
at a GS-13 level; had not abided by office policies; had been absent
for hours at a time; and had not sought approval to be off. The record
also reflects that S1 sought guidance from the management/employee
relations department concerning complainant's conduct. Further, the
AJ's findings that complainant was not treated any differently than any
other employee who did not perform their duties, that complainant did
not properly request leave, and did not follow instructions are supported
by substantial evidence in the record. Considering the totality of the
circumstances, a finding that complainant was not harassed is supported
by substantial evidence in the record.
Age Discrimination
Although McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973) is
a Title VII case, its analysis is also applicable to disparate treatment
cases brought under the ADEA. See Sutton v. Atlantic Richfield Co., 646
F.2d 407, 411 (9th Cir. 1981). In an ADEA case, complainant may establish
a prima facie case by showing, inter alia, that he is in the protected
group (over 40), and was treated less favorably than other similarly
situated employees. Complainant may also set forth evidence of acts
from which, if otherwise unexplained, an inference of discrimination
can be drawn. See Enforcement Guidance on O'Connor v. Consolidated
Coin Caterers Corp., EEOC Notice No. 915.002 (September 18, 1996).
However, the ultimate burden of persuading the trier of fact that the
agency intentionally discriminated against complainant remains at all
times with complainant.
The AJ concluded that complainant had failed to establish a prima facie
case of age discrimination. The AJ found that younger employees were not
treated more favorable, e.g., employees reassigned with complainant were
treated the same for training opportunities; all employees were expected
to use the �dot board� to indicate their whereabouts; all employees were
subject to the same office rules and practices concerning leave, and the
performance of their work duties. The AJ further noted that assuming,
arguendo, that a prima facie case of age discrimination was established
that the agency had articulated legitimate, nondiscriminatory reasons
for its actions, i.e., complainant was charged with AWOL for failing to
call in to request sick leave; was suspended for five days for failure
to work on assigned duties in a timely manner, for excessive amounts
of time away from his work, and for failure to follow established leave
procedures; and was counseled for failure to comply with policy concerning
keeping management advised as to his whereabouts, and the use of the
�dot board.� The AJ further concluded that complainant did not present
evidence that the agency's actions were due to age discrimination but
were due to complainant's unwillingness to perform assigned duties and
to abide by office rules and procedures. The agency actions were not
based on complainant's protected status. Further the AJ found that the
agency's witnesses, i.e, DI, S1, S2, S3, and co-workers, were credible,
and that complainant had not presented evidence that the agency's reasons
for its actions were unworthy of belief. These findings of fact are
supported by substantial evidence in the record.
Disability Discrimination
Section 501 of the Rehabilitation Act of 1973, 29 U.S.C. � 791 et seq.,
prohibits discrimination on the basis of disability and requires agencies
of the Federal government to make reasonable accommodation to the known
physical. or mental limitations of qualified employees with disabilities,
unless the agency can demonstrate that accommodation would prove to be an
"undue hardship.�
In analyzing a disparate treatment claim under the Rehabilitation Act,
where the agency denies that its decisions were motivated by complainant's
disability and there is no direct evidence of discrimination, we apply the
burden-shifting method of proof set forth in McDonnell Douglas Corporation
v. Green, supra. The AJ found that complainant was an "individual with
a disability,� but not "qualified" for the position held because he
could not perform the essential duties of his position either with or
without reasonable accommodation. While these findings are supported
in the record, the Commission will assume, arguendo, that complainant
is a qualified individual with a disability. As noted previously,
the agency had articulated legitimate, nondiscriminatory reasons for
its actions, e.g., complainant was place on AWOL for failing to call in
to request sick leave; was suspended for five days for failure to work
on assigned duties in a timely manner, excessive amounts of time away
from the office, and failure to follow established leave procedures;
and was counseled for failure to comply with policy concerning keeping
management advise as to his whereabouts, and the use of the �dot board.�
After reviewing the entire record, we find that the agency articulated
legitimate, nondiscriminatory reasons for its actions. These findings
of fact are supported by substantial evidence in the record.
Therefore the burden returns to complainant to demonstrate that the
agency's reasons were a pretext for discrimination, that is, that the
agency's reasons were not true and that the agency was more likely
motivated by discriminatory reasons. The complainant has not met his
burden in this regard. Complainant has not presented sufficient evidence
to demonstrate that the agency's actions were due to his disabilities.
The Commission agrees with the AJ that complainant failed to demonstrate
that the agency's reasons for its action were based on discriminatory
considerations.
Concerning the issue of reasonable accommodation, again assuming,
arguendo, that complainant was an qualified individual with a disability,
the record indicates that the agency offered complainant reasonable
accommodations, i.e., complainant was given training in his new position,
was not required to work overtime, could eat at his desk; could take
restroom breaks whenever necessary; could test his blood sugar in the
morning and also later in the day, if needed, at his desk; was given a
medical reassignment to a 120-day detail; and detailed to a temporary
position in the agency's library, positions which were believed to
be less stressful. The agency also searched for positions at other
locations. While complainant wanted to stay in his prior position or be
a �troubleshooter,� the agency is not obligated to provide complainant
with his chosen accommodation. See EEOC Enforcement Guidance: Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities Act
(March 1, 1999). These findings of fact are supported by substantial
evidence in the record. We find that the agency provided appropriate
accommodations for complainant's disability.
Reprisal Claims
Claims of reprisal discrimination are also examined under the tripartite
analysis first enunciated in McDonnell Douglas Corporation v. Green,
supra. The Commission has stated that adverse actions need not qualify
as "ultimate employment actions" or materially affect the terms and
conditions of employment to constitute retaliation. Lindsey v. United
States Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC
Compliance Manual, No. 915.003 (May 20, 1998)). Instead, the statutory
retaliation clauses prohibit any adverse treatment that is based upon a
retaliatory motive and is reasonably likely to deter the charging party
or others from engaging in protected activity. Id.
Concerning claim 1, while not specifically making a finding in relation to
a reprisal claim, the AJ did set forth findings of fact which established
that the agency articulated legitimate, nondiscriminatory reasons for
its actions which reasons are also applicable to the claim of reprisal.
Further, the AJ found that there had been no showing that complainant
was treated any differently than any other employee.
Concerning claim 2, the AJ found that DI's statement was factually correct
and reflected an accurate description of complainant's performance,
and that DI's intention was to assist complainant in his request for
disability retirement. Complainant acknowledged that the statement
would probably have assisted him in obtaining disability retirement,
but that the statement was not factually accurate. However, other than
the statement being close in time to his filing of claim 1, complainant
did not offer other sufficient evidence that DI's action in writing the
statement was in reprisal for protected EEO activity. These findings
of fact are supported by substantial evidence in the record.
CONCLUSION
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts. and
referenced appropriate regulations, policies, and laws. We discern no
basis to disturb the AJ's decision. Therefore, after a careful review of
the record, including complainant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, we affirm the agency's final order.
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 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), 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 (S0900)
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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 26, 2002
Date
1 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2 Complainant amended this complaint to include the basis of reprisal.
The Report of Investigation states that complainant did not establish
that he engaged in a prior Title VII protected activity.
3 The �dot board� was used to indicate where an employee was when not
at his/her desk.
4 Complainant's application for disability retirement was approved.
5 Complainant's was represented at the hearing held on March 16 and 17,
1995, by present counsel, notwithstanding that complainant's brief states
that he was pro se until September 1996.