01981893-01986351
06-08-2000
Roderick L. Ott, Complainant, v. Bill Richardson, Secretary, Department of Energy, Agency.
Roderick L. Ott, )
Complainant, )
) Appeal No. 01981893
v. ) 01986351
) 01993982
Bill Richardson, ) Agency No. 97(58)OSTI
Secretary, ) 97(134)OSTI
Department of Energy, ) 98(074)OSTI
Agency. )
)
DECISION
INTRODUCTION
Roderick L. Ott (the complainant) timely filed appeals with the Equal
Employment Opportunity Commission (the Commission) from final agency
decisions (FADs) concerning his complaints of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. � 2000e et seq.<1> The Commission hereby
accepts the appeals in accordance with 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue on appeal is whether the agency properly determined that
complainant had failed to prove that the agency discriminated against
him based on race, color and reprisal when he was harassed.
BACKGROUND
Factual History: Complaints A, B and C
Complainant was employed by the agency as a Computer Specialist, GS-12,
at the agency's Office of Scientific and Technical Information in Oak
Ridge, Tennessee. In March 1996, he was not selected for a position to
which he had applied; he sought EEO counseling, and subsequently filed a
formal complaint on the non-selection on May 23, 1996. In the course of
EEO counseling on this complaint, the agency claimed that the candidate
who was selected had superior management and interpersonal skills.
In 1997, complainant filed a civil action in the United States District
Court for the Eastern District of Tennessee.
Beginning in October 1996, complainant claims that the agency conducted
a campaign of harassment and reprisal against him and he detailed
the following incidents as illustrative of that discrimination.
On October 23, 1996 and November 7, 1996, he was instructed not to
attend meetings between another employee and management in which the
complainant was to function in his capacity as an EEO Counselor, or
he would face a reprimand (Issue 1). On October 22, 1996, he applied
to attend a Blacks In Government training seminar that was to be held
locally; on November 20, 1996, he was informed that his request was
denied because the training did not support the strategic plan of the
agency (Issue 2). On October 29, 1996, a computer program he had been
working on as part of a project tracking system had been removed from his
computer (Issue 3). Complainant claimed that he was planning to use the
program in the course of his EEO complaint regarding his non-selection
in order to prove that he had project management skills on par with
or superior to those of the selectee. After an internal inquiry, the
program was subsequently restored. On October 31, 1996, he received
his performance evaluation from his supervisor (MO-1), in which he was
rated as Highly Successful in the area of Communication and Coordination;
he claimed that he deserved the higher rating of Outstanding (Issue 4).
During the course of his discussion with MO-1 about his performance
evaluation, complainant alleged that MO-1 had stated that he believed
that complainant's memory was excellent and that this could be attributed
to his ancestry (which MO-1 explained by stating that when slaves were
first brought to the United States they could not, and were not allowed
to, read or write and had to rely on their memories, which must have
led to superior memory skills). While MO-1 denied making the comment,
it was corroborated by complainant's co-worker (CO-1), the Union Steward,
who was also present during the evaluation.
On November 1, 1996, he received a copy of an e-mail from another
management official (MO-2), not his supervisor, in which MO-2 informed
MO-1 of complainant's deficiencies in dealing with agency customers
(Issue 5). MO-2 sent the e-mail to MO-1 and MO-3, his second level
supervisor, after he attempted to discuss the topic with complainant
informally and was told by complainant that he did not have the time and
to send it to MO-1. On November 13, 1996, complainant was denied access
to the unclassified vault (in which unclassified software was stored)
and was later reprimanded for being in the vault (Issue 6). On November
14, 1996, he was officially removed from his position as an EEO Counselor
(Issue 7). On November 15, 1996, complainant was told by MO-3 that he had
not taken the appropriate leave for his absences the mornings of November
13 and 15 (Issue 8). On November 27, 1996, complainant was called
into the office of MO-3 in order to discuss why the personnel folder
of another employee had been found in complainant's office (Issue 9).
He claimed that management officials wished to hold the meeting without
his union representative present, and threatened him with discipline when
he told them he would not meet if his union representative was not there.
On February 26, 1997, complainant was assigned to work under a �Work
Scheduler� who would create his assignments and monitor his work in
order to address his alleged deficiencies in his communication and
coordination skills (Issue 10). He was warned that if those skills
did not improve he would be placed under a Performance Improvement Plan
(PIP) (Issue 11). At a meeting with MO-1 and MO-3 on February 27, 1997,
about the assignment of the Work Scheduler and his alleged deficiencies,
complainant asked for specific examples of the problem. He claimed to
have asked why his deficiencies weren't brought up in his October 1996
performance evaluation, and that he was not given a satisfactory response.
He was given, however, a chronology of work incidents which were compiled
to show his communication and coordination problems (Issue 12). The
dates on the chronology begin soon after complainant's non-selection in
March 1996, concurrent with his first contacts with an EEO Counselor
on the issue, and continued through to February 1997. On March 12,
1997, complainant was accused in an e-mail of harassing a contractor
(Issue 13). Complainant claimed that for the incident in question he
had merely asked a contractor what he was doing in the office of another
government employee and he was subsequently warned not to harass or act
in a supervisory capacity to any contractor on site. In April 1997,
complainant was not selected as a representative to an office Change
Control Board (Issue 14), and an employee not of his protected group
was selected to serve by MO-1 and MO-3. Complainant claimed that he
had superior �experience and knowledge� and was more qualified than the
selectee, and claimed that the position had been �promised� to him.
In April 1997, complainant was reassigned to a different team in his
office. During November 1997, he claimed that MO-4, in conjunction with
MO-1 and MO-3, failed to provide him with work files he needed in order
to complete his job duties (Issue 15). He claimed that from July 1997
through the time of filing his complaint, he had been performing at a
GS-13 level, but had been paid as a GS-12 (Issue 16). On January 27,
1998, complainant received a copy of an e-mail sent from his new team
leader (MO-5) to one of his supervisors regarding MO-5's recommended
evaluation of complainant's work on the team. In the note accompanying
the recommendation, MO-5 said it �could be a �minefield' but believe
reasonable.� In the recommended evaluation, MO-5 wrote that complainant
should be rated as not always having met requirements on one of his
performance elements, namely that of Communication and Coordination,
in a few specific instances. After complainant responded to MO-5 with
specific proof of how he handled those particular instances, MO-5 withdrew
the recommendation. (Issue 17).
Procedural History: Complaint A
Complainant initiated EEO Counseling on November 15, 1996. He filed
formal complaint number 97(58)OSTI, EEOC Appeal No. 01981893, on December
9, 1996, claiming discrimination and harassment on the bases of race
(African American), color (black) and reprisal (prior EEO activity)
and encompassing Issues 1 through 9. The agency accepted the complaint
for investigation and processing, with the claim articulated as whether
the complainant was subjected to reprisal and harassment, and listing
two allegations from complainant's complaint. It did not specifically
dismiss the other claims. At the conclusion of the investigation, the
agency issued a copy of its investigative report and notified complainant
of his right to request an administrative hearing. Complainant requested
the agency to issue its final decision on the record. The agency issued
FAD-1 on December 16, 1997.
In FAD-1, the agency addressed Issues 1, 2, 3, 4, 5, 6, 7, and 9.
For Issues 6 and 9, the agency found that the complainant had failed
to establish a prima facie case of discrimination because he was unable
to demonstrate that he had suffered any adverse action and therefore
failed to state a claim. FAD-1 further stated that for Issues 1, 2,
3, 4, 5 and 7, complainant had failed to establish that the legitimate,
nondiscriminatory reasons articulated by the agency for its actions were
pretext for discrimination. It did not specifically address complainant's
claim of harassment, the alleged racial comment, or Issue 8. This appeal
was filed on January 14, 1998.
Procedural History: Complaint B
Complainant initiated EEO Counseling on March 18, 1997. He filed formal
complaint number 97(134)OSTI, EEOC Appeal No. 01986351, on May 2, 1997,
claiming discrimination and harassment on the bases of race (African
American) and reprisal (prior EEO activity) and encompassing Issues 10
through 14. The agency accepted the complaint for investigation and
processing. At the conclusion of the investigation, the agency issued a
copy of its investigative report and notified complainant of his right to
request an administrative hearing. After complainant requested a final
agency decision on the record, the agency issued FAD-2 on July 24, 1998.
In FAD-2, the agency found that regarding Issues 11 and 13, the
complainant had failed to establish a prima facie case of discrimination
because he was unable to demonstrate that he had suffered any adverse
action and therefore failed to state a claim. FAD-2 further stated
that on Issues 10 and 12 complainant had failed to establish that
the legitimate, nondiscriminatory reasons articulated by the agency
for its actions were pretext for discrimination. Regarding Issue 14,
the agency found that complainant had not made out a prima facie case
of discrimination because he had not shown that there was a vacancy
and that he applied for the position. It did not specifically address
complainant's claim of harassment. This appeal was filed on August 24,
1998.
Procedural History: Complaint C
Complainant initiated EEO Counseling on February 12, 1998. He filed
formal complaint number 98(074)OSTI, EEOC Appeal No 01993982, on March
27, 1998, claiming discrimination on the bases of race (African American)
and reprisal (prior EEO activity) and encompassing Issues 15, 16 and 17.
The agency accepted the Issue 17 for investigation and processing.
It dismissed Issues 15 and 16 for untimely EEO counselor contact.
Although complainant wrote to the agency to protest their dismissal
as untimely, he did not appeal the dismissal to the Commission.
At the conclusion of the investigation, the agency issued a copy of its
investigative report and notified complainant of his right to request an
administrative hearing. After complainant requested a FAD on the record,
the agency issued FAD-3 on March 31, 1999.
In FAD-3, the agency found that the complainant had failed to establish a
prima facie case of discrimination because he was unable to demonstrate
that he had suffered any adverse action because the recommendation
was withdrawn. FAD-3 further stated that complainant had failed to
establish that the legitimate, nondiscriminatory reason articulated
by the agency for its decision was a pretext for discrimination.
This appeal was filed on April 26, 1999.
ANALYSIS AND FINDINGS
Initially, we note that the agency erred in looking at all the issues
as individual claims of disparate treatment, considering that the
complainant had alleged a pattern of harassment based on his race,
color and reprisal. The Commission has previously held that when
confronted with claims involving multiple allegations, an agency
should not ignore the "pattern aspect" of a complainant's allegations
and define the issues in a piecemeal manner where an underlying theme
unites the matters complained of. Meaney v. Department of the Treasury,
EEOC Request No. 05940169 (November 3, 1994); Ferguson v. Department of
Justice, EEOC Request No. 05970792 (March 30, 1999); Drake v. Department
of the Air Force, EEOC Request No. 05970689 (March 29, 1999). Therefore,
we will analyze complainant's claim as one of harassment.
It is well-settled that harassment based on an individual's race,
color, and prior EEO activity is actionable. See Meritor Savings Bank
FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim
of harassment under those bases, the complainant must show that: (1)
he belongs to the statutorily protected classes and engaged in prior
EEO activity; (2) he was subjected to unwelcome conduct related to
his membership in those classes and his prior EEO activity; (3) the
harassment complained of was based on race, color, and his prior EEO
activity; (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 Henson v. City of Dundee, 682
F.2d 897 (11th Cir. 1982). 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).
Taking complainant's allegations as a whole, we will examine his claims
to determine if he has established a claim of harassment based on a
hostile work environment. We find that complainant satisfies element 1,
that he is a member of the protected classes of race and color, and that
he had previously participated in protected EEO activity, namely his EEO
complaint regarding his non-selection. He claims to have been subjected
to unwelcome conduct in the workplace based on his race, color and for
retaliatory reasons, as claimed in the Issues listed above.
The question of the matter is whether the Issues complained about by
the complainant were based on his race, color and retaliation. We have
analyzed each Issue claimed by complainant and accepted for processing
by the agency, and the legitimate, non-discriminatory reasons advanced by
the agency to explain the management officials' actions. We find that on
the whole, the agency has advanced legitimate, non-discriminatory reasons
for its actions which the complainant has not proven to be pretextual.
Issues 5, 10, 11, 12, 13, 14, and 17 are all linked to the problems the
agency claimed complainant was having in the area of Communication /
Coordination skills. The agency presented the testimony of several
office co-workers who testified that complainant could be difficult to
work with and argumentative at times. The agency included in the record
copies of some e-mails that were sent among management officials and
complainant regarding miscommunications over projects and situations.
We find that the management officials involved had legitimate reasons
to be concerned with complainant's Communication / Coordination skills
and that the actions complained of in these Issues were not taken for
discriminatory reasons.
Regarding Issues 1 and 7, we find that the agency advanced legitimate,
non-discriminatory reasons for curtailing his responsibilities and
removing him from his EEO counselor position. On September 25, 1996,
complainant became a Union Steward. Management officials expressed
concern about a potential conflict between his responsibilities as an EEO
counselor and those of a Union Steward. The incident in Issue 1, where
he was told not to attend meetings between an employee and her supervisor,
MO-6 (the management official in Labor Relations) explained by saying that
complainant was told not to go to the meeting because the employee had
not yet filed an EEO complaint, and her union representative was already
scheduled to attend the meeting. MO-6 later removed complainant from
his counseling duties because MO-3 expressed concerns about the amount
of time complainant was spending on EEO counseling duties and job duties
of complainant's that he claimed were not being completed. MO-3 also
testified that there were customer concerns about complainant's lack of
availability to perform his assigned duties. While complainant showed
that he had spent less than 20% of his time on EEO counseling duties,
as he was allowed to do under agency regulations, he did not show that
the agency's reasons for his removal as EEO counselor were pretextual.
We also find that complainant has not shown that he was denied the
opportunity to go to BIG training (Issue 2) for discriminatory reasons.
MO-3 testified that the organization had decided not to support this
type of training during fiscal year 1997. Complainant did not show that
others had been permitted to attend training sessions of this type and
that he was improperly denied. Additionally, MO-3 testified that he
had told complainant that he could take administrative leave to attend
and that complainant was the one who decided that he did not wish to go.
Complainant did not provide any rebuttal to this testimony, therefore,
we find he has not shown that he was denied for pretextual reasons.
Regarding Issues 6, 8, and 9, the evidence shows that in each instance
the management officials involved were not reprimanding complainant for
his actions but rather were clarifying agency procedures or situations
in the office. In Issue 6, complainant was in the vault when another
co-worker came in to change the placement of the sign labeling which
sections were restricted. Subsequently, the access procedures to the
unclassified vault were reissued to the entire office. Issue 8 occurred
over a misunderstanding on the part of MO-3 about what kind of leave
complainant was going to take on the dates in question, annual or credit.
In Issue 9, complainant claimed that management officials had planted the
personnel file in his office in order to frame him and issue discipline.
No discipline was ever issued and complainant has failed to prove
that the file was purposefully placed in his office for this reason.
For each Issue, we find that complainant has not shown that the agency
acted for pretextual reasons.
In two instances, however, the complainant did show that the agency acted
improperly, namely Issues 3 and 4. In Issue 3, complainant discovered
that a computer program which he intended to use in the course of his
EEO complaint regarding the non-selection was missing from the place
he had been storing it on the shared drive in the computer system.
The agency official responsible for removing it, MO-4, was the person
who received the position complainant desired in the non-selection case.
Complainant had told other co-workers in the office that he intended to
show that his project management skills were on par with or superior to
those of the selectee, MO-4, through a demonstration of this particular
computer program. After an internal investigation following complainant's
filing of a computer security incident, the program was restored to
complainant's access on the computer drive.
Issue 4 had two components to it, the performance evaluation and
the racial comment. We find that the agency adequately explained
complainant's receipt of a �Highly Successful� in the area of
Communication / Coordination skills on the 1996 evaluation. The record
reveals that complainant received this exact same rating on these skills,
�Highly Successful,� in his 1993, 1994, and 1995 performance evaluations.
We further find, however, that complainant has shown that the racial
remark about his memory skills was made by MO-1, despite MO-1's denial
of it. The affidavit of CO-1 confirms that she heard the comment as well.
She stated that although she was not offended by it, because she is not
African American, she testified that the complainant �found it offensive
that he was compared with slaves.�
In order for harassment to be considered as conduct in violation of the
regulations that the Commission enforces, it must be pervasive or severe
enough to significantly and adversely alter the conditions of the victim's
employment and create an abusive working environment. Harris v. Forklift
Systems, Inc., 114 S.Ct. 367 (1993). The conduct in question is evaluated
from the standpoint of a reasonable person, taking into account the
particular context in which it occurred. Highlander v. K.F.C. National
Management Co., 805 F.2d 644 (6th Cir. 1986). The Commission notes
that unless the conduct is very severe, a single incident or group of
isolated incidents will not be regarded as discriminatory harassment.
Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982).
We do not find that the two incidents proven by complainant in Issues
3 and 4 were pervasive or severe enough to significantly and adversely
alter the conditions of his employment. The incident that complainant
proved occurred in Issue 4 was a single instance of a racial remark.
As it was a single incident, it was not pervasive, and is not severe
enough to constitute harassment. The other incident in Issue 3 that
complainant identifies as harassment was a single incident, it was not
pervasive, and it was corrected by the agency when the computer program
was restored to complainant's access, and therefore is not severe enough
to constitute harassment. These two incidents taken together are not
enough to show a case of harassment, and we find therefore, that the
complainant was not subject to harassment as alleged.
CONCLUSION
Accordingly, the decisions of the agency are AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
__06-08-00_______ __________________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date 1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.