0120081530
05-28-2008
Bevin M. Parkins, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Bevin M. Parkins,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120081530
Agency No. HS-06-FEMA-006462
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from a final agency decision dated November 30, 2007, 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 the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq.
At the time of the events at issue, complainant was employment by the
Federal Emergency Management Agency (FEMA) as a Human Services Specialist,
GS-7, in Hyattsville, Maryland. In a formal EEO complaint and subsequent
amendment, complainant alleged that the agency discriminated against him
on the bases of race (African-American), national origin (Jamaican),
color (Brown), and age (over 40) when: (1) on January 1, 2006, his
immediate supervisor subjected him to hostile work environment harassment
by speaking to him in a threatening and condescending manner, which
resulted in complainant having an anxiety attack, (2) management issued
complainant a Notice of Termination of Appointment, and (3) management
refused to assist complainant with obtaining medical assistance or leave.
Briefly, the investigation into the complaint reveals that on January 1,
2006, complainant was meeting with his supervisor to discuss various
topics, including complainant's leave slip for an unspecified number
of days. The supervisor apparently stated the leave request could not
be approved without a manager's concurrence. The supervisor stated that
complainant became angry and started shouting. Complainant stated the
supervisor was very intimidating, used a loud voice and acted nasty.
Complainant left the meeting when he began to experience chest pains
in order to get his blood pressure medication. He never returned to the
meeting. From January 2, 2006 onward, complainant was absent from work.
Complainant alleged that on January 7, 2006, the supervisor called
his home and asked why he was absent from work. The supervisor stated
she called complainant because he had been absent for more than three
days. On March 17, 2006, management requested medical documentation
to support complainant's extended absence from work. Complainant's
doctor indicted that he was unable to work because his return to the
workplace would trigger anxiety attacks. Based the doctor's opinion
that complainant was unable to work, agency management terminated his
appointment on April 28, 2006. The agency stated that complainant was
provided with information on how to apply for workers' compensation if
he believed his medical condition was work-related.
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. Complainant failed to show that the
legitimate, nondiscriminatory reasons articulated by the agency are
pretext, or that the actions alleged rose to the level of a hostile work
environment or were based on discriminatory motives.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
May 28, 2008
______________________
Date
3
0120081530
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036