0120082199
04-09-2010
Clarence A. Gibson, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, (National Institutes of Health) Agency.
Clarence A. Gibson,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
(National Institutes of Health)
Agency.
Appeal No. 0120082199
Agency No. NIH-NIEHS-06-0005
DECISION
On April 10, 2008, complainant filed an appeal from the agency's March 4,
2008 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. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final decision.
ISSUE PRESENTED
The issue presented is whether the agency properly determined that
complainant had not been discriminated against on the bases of his race,
sex and in reprisal for prior EEO activity, as alleged.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Property Disposal Specialist, GS-9, in the agency's Property Management
Office, at the National Institutes of Health facility in Research Triangle
Park, North Carolina. On September 27, 2006, complainant filed an EEO
complaint alleging that he was discriminated against on the bases of race
(black), sex (male), and in reprisal for prior protected EEO activity
arising under Title VII when:
1. a) On November 14, 2005, the Property Disposal Supervisor added
cleaning out the Daycare Building to his duties;
b) On April 26, 2006, the Property Disposal Supervisor added sweeping
and mopping the Davis Park Warehouse to his duties; and
c) On June 12, 2006, the Property Disposal Supervisor added driving the
NIEHS shuttle van to his duties.
2. He was subjected to a hostile work environment, as evidenced by the
following (among 24 incidents listed):
a) On August 9, 2006, his supervisor, the Property Disposal Manager,
required him to report on his daily work activities;
b) On September 6, 2006, the Property Disposal Manager reassigned his
decaling duties to a female coworker; and
c) Regularly and on a recurring basis, the Property Disposal Manager
threatens to place negative information in his performance evaluation.
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). Although complainant
first requested a hearing, the AJ remanded the matter to the agency
for issuance of a final decision pursuant to 29 C.F.R. � 1614.110(b),
following complainant's non-compliance with her Orders. The decision
concluded that complainant failed to prove that he was subjected to
discrimination as alleged.
In its final agency decision (FAD), the agency assumed that complainant
had established prima facie cases of race, sex, and reprisal
discrimination. It then addressed each of the incidents listed by
complainant (six of which were formally accepted in the Letter of
Acceptance, as listed above). Beginning in August 2005, complainant
and other co-workers in the Property Office complained to the Chief
Administrative Officer (CAO) that their supervisor (S1) was treating
them "unfairly." Subsequently, S1 met with the employees and informed
them that if they felt he was treating them unfairly, he would now "dot
every I and cross every T" in order to adhere strictly to the rules and
eliminate unfairness. Complainant alleged that this was an example of
S1's intimidating, unprofessional and abusive behavior.
In claim 1(a) above, the agency stated that complainant was asked
to assist in cleaning out the Daycare building as the landlord was
reclaiming space, and complainant, a co-worker, and contractors were used
to remove agency property and clean the space. S1 asserted that as this
was a duty his office was responsible for, Property Management Office
personnel were properly utilized for this one-day assignment. In other
incidents, S1 would task complainant with functions that were within
the duties of the Property Management Office, although not generally
part of complainant's daily duties, especially if it seemed to S1 that
complainant was not otherwise engaged. In response to S1's request to
assist another co-worker with sweeping and mopping the warehouse area
and to load a truck (claim 1(b)), complainant told S1 to put his request
in writing, to which S1 replied that he as a supervisor did not have to
put requests in writing. This, complainant alleged, was discriminatory
and harassing behavior on the part of S1.
On June 26, 2006, the Property Management Office personnel were
informed that the agency was no longer contracting with an outside
company to provide shuttle service and that this duty was now assigned
to that Office. The CAO selected complainant and another employee as the
primary drivers (claim 1(c)). Other staff were to serve as backups when
complainant and the co-worker were not available. Complainant claimed
that many of the attendant duties to driving the shuttle, such as
reporting to S1 in the mornings, logging requests for shuttle service,
maintaining custody of the shuttle service cell phone when it was his
turn to drive, and informing S1 of his whereabouts at work (claim 2(a)),
were tasks given to him by S1 as a way of harassing him. S1 testified
that these tasks were necessary to carry out complainant's new duties,
and that he, S1, often does not know where complainant is going when he
leaves the office.
S1 testified with respect to claim 2(b), that he reassigned the decaling
duties to another employee in order to address the yearly overages
that appeared at inventory time.1 Finally, in response to claim 2(c),
the agency noted that S1 and the CAO both testified that complainant
has issues with S1's management style, but that complainant has been
treated fairly by S1, receiving cash and performance awards, training
and satisfactory performance appraisals. The agency concluded its FAD
by finding that complainant had not shown any of the agency's reasons
to be pretext for discrimination, or to establish a case of hostile work
environment harassment.
The agency issued its decision finding no discrimination in complainant's
complaint. Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
On appeal, complainant argued that the agency's decision should be
reconsidered and that he has been discriminated against and subjected
to retaliation. The agency did not file a response to complainant's
arguments.
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").
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Assuming that complainant has established his prima facie cases of race,
sex, and reprisal discrimination, we find, based on our own review of
the record, that the agency has provided legitimate, nondiscriminatory
reasons for its actions. There is no evidence in the record that any
of S1's actions were taken as a result of complainant's race, sex or
in reprisal for prior EEO activity. In point of fact, the evidence
points to attempts by S1 to adhere to rules and regulations, to carry
out the duties of the Property Management Office to the best of his
abilities using the "other duties as assigned" in order to address
unique situations, and to actually "managing" the work of complainant.
Complainant has not provided any evidence to the contrary.
Finally, to the extent that complainant also alleged that he was subjected
to hostile work environment harassment, we find, under the standards
set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993),
that complainant's claim of hostile work environment must fail. See
Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice
No. 915.002 (March 8, 1994). A finding of a hostile work environment
is precluded based on our determination that complainant failed to
establish that any of the actions taken by the agency were motivated
by discriminatory animus. See Oakley v. United States Postal Service,
EEOC Appeal No. 01982923 (September 21, 2000).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we hereby AFFIRM
the agency's final decision, because a preponderance of the record
evidence does not establish that discrimination occurred with respect
to complainant's claims.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (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 (Z1008)
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
______4/09/10_____________
Date
1 The decals were stickers put on new equipment in order to track it.
According to S1, each year, 75-100 stickers were being used but were
not then accounted for by being entered in the system.
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0120082199
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120082199