0120122524
10-26-2012
Roosevelt Walker, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
Roosevelt Walker,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120122524
Hearing No. 490-2007-00156X
Agency No. P20060639
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's April 23, 2012 final decision 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-11 Lieutenant at the Agency's Federal Correctional Complex (FCC) in Forrest City, Arkansas.
On June 29, 2006, Complainant filed a formal complaint alleging that the Agency subjected him to hostile work place discrimination on the basis of race (African-American)1 when: 1) From June 11 to September 11, 2006, management rotated him to relief positions, even though a white Lieutenant was not obliged to work such duties; 2) On May 19, 2006, a manager denied his request to be placed on a different shift, and treated him with hostility; 3) On June 21, 2006, a manager gave him a poor quarterly review and subjected him to threats of future adverse ratings; and 4) On June 27, 2006, a manager gave him a letter of counseling.
Complainant stated that from December 11, 2005, to March 11, 2006, his supervisor, the Captain, assigned him to work in relief of correctional officers taking sick or annual leave. Complainant stated that in February 2006 he learned that his supervisor had assigned him to another quarter of sick and annual relief duty, so Complainant sent his supervisor an e-mail asking why he had received that duty again. According to Complainant, the Captain replied that he had assigned most Lieutenants to the same positions they had held in the previous quarter, but Complainant could request to "switch with somebody." Complainant stated that on May 5, 2006, he asked the Captain to assign him to a different shift for the upcoming quarter, but the Captain stated that "he really didn't know what he was going to do at that point." Complainant claimed that a white GS-11 Lieutenant, was assigned to sick and annual leave relief duty alongside him at one point, but was permitted to work as a Training Lieutenant in lieu of his sick and annual relief duties. Complainant stated that on May 19, 2006, he discussed his upcoming quarterly assignment with the Captain. Complainant stated that he told him that sick and annual relief duty was an undesirable position, and the Captain replied by asking Complainant "Do you want to be a Lieutenant or not?"
Complainant stated that on June 21, 2006, the Captain gave him a quarterly evaluation in which he received a rating of "minimally satisfactory" in the element of Communication. According to Complainant, the Captain based this rating on a June 19, 2006, incident in which Complainant failed to make a note in his Lieutenant's log of a letter posted on an inmate bulletin board that the Captain found to be inflammatory. Complainant stated that he found the letter to be "nothing to ring the bells about." Complainant stated that on June 27, 2006, the Captain gave him a counseling letter for failure to implement an institutional procedure. Complainant stated that the letter referred to his alleged failure to execute a new inmate accountability program properly. Complainant stated that another Lieutenant had experienced similar problems with the new accountability program, but had not been disciplined for those problems.
The Captain stated that he was responsible for creating the roster assignments of GS-11 lieutenants. The Captain also stated that he was understaffed with regard to lieutenants during the pertinent time frame. The Captain further stated that all of his new lieutenants are placed on SR1 so they can perform a range of positions. Additionally, Complainant was unavailable for work for most of the first two quarters he worked at FCC Forrest City, and required light duty for the second quarter. The Captain noted that Complainant was assigned to a temporary alternative duty (TAD) job pursuant to the Worker's Compensation Program. Therefore, the Captain stated that he placed him in a Sick and Annual relief post so that he would not have to be relieved during his absences and light duty. Also, the Captain noted that he did not change appointments after they were posted, given the clear ripple effect of changing the assignments after he posted them. He asserted that he encouraged his lieutenants to work together in terms of scheduling. The Captain further asserted that he put Complainant on the sick and annual assignment with the purpose of having him fill in behind a previously disciplined employee and thus, get the evening watch assignment that he wanted.
With regard to the Communication element evaluation and counseling letter, the Captain stated that Complainant failed to fulfill the performance requirements of his position by not monitoring inmate census counts and failing to advise his supervisors and peers of communications/threats made by inmates.
The record reflects that Supervisory Relief ("SR") is one of the shifts that lieutenants at FCC Forrest City can be appointed. This particular shift has a pre-determined schedule: Thursday (evening watch); Friday (evening watch), Saturday (evening watch for the medium institution and day watch for the low institution); Sunday (morning watch); and Monday (morning watch). "Sick and Annual" is a shift that involves filling in during the various shifts when other lieutenants are on sick or annual leave. Complainant was assigned to SR1 for the June 19, 2005-September 10, 2005, Quarter. Complainant went on Continuation of Pay from August 4, 2005, until September 6, 2005, after a workplace injury. Complainant returned to work on September 6, 2005.
At the conclusion of the investigation, Complainant was provided with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant initially requested a hearing but opted for a final decision in this matter. On November 22, 2010, the AJ remanded this case to the Agency for a final decision.
In its final decision, the Agency found no discrimination. The Agency determined that, even if Complainant could establish a prima facie case, management had recited (above) legitimate, nondiscriminatory reasons for its actions.
In conclusion, the Agency found that the events of which Complainant complains, either individually or collectively fail to rise to the level of unlawful harassment prohibited by Title VII. Most importantly, there is no evidence that any of the actions or decisions of Agency management were motivated by unlawful reasons. Complainant failed to establish that any of management's reasons for its actions were pretextual or unworthy of belief. Complainant failed to establish discrimination under either the theory of disparate treatment or unlawful harassment.
On appeal, Complainant asserts that the Agency improperly found no discrimination in this matter. He further asserts that the Agency did not adequately address his claims of harassment. Complainant specifically asserts that the AJ had allowed him to amend his claim to include an additional basis of disability discrimination; however, the Agency's final decision does not reflect an analysis based on disability discrimination. In response, the Agency noted that Complainant has not produced any evidence in his appeal that the AJ amended his complaint to include the basis of disability. While the record is not clear as to whether the AJ included the added basis of disability, the analysis below will incorporate disability as an additional basis in Complainant's complaint.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management Directive 110, Chapter 9, � VI.A. (November 9, 1999). (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (March 8, 1994). An employer is subject to vicarious liability for harassment when it is "created by a supervisor with immediate (or successively higher) authority over the employee." Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2292-93 (1998). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has stated that: "Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile environment harassment, complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. 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 at 6.
Here, Complainant asserted that based on his race and disability, management continuously subjected him to a hostile work environment. However, we find no evidence of a nexus between the actions disputed by Complainant and his statutorily protected classes. Further, Complainant has not shown that the purported harassment had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment. While Complainant has cited various incidents where Agency management took actions that he perceived as adverse or disruptive to him, we find that Complainant fails to show that these incidents were as a result of unlawful discrimination. To the extent Complainant is alleging disparate treatment with respect to his claims, even assuming he is an individual with a disability as defined in the Rehabilitation Act, he has not proven, by a preponderance of the evidence, that the Agency's proffered reasons for its actions were a pretext for discrimination. Finally, the record does not show that based on a claimed disability, Complainant made a request for a reasonable accommodation to management or that management has failed to respond to his request for a reasonable accommodation.
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 26, 2012
__________________
Date
1 On appeal, Complainant asserts that, while he was in the hearing process on his complaint (although he later withdrew his request for a hearing), he amended his complaint to add a claim of disability discrimination with regard to these four incidents.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120122524
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122524