0120110771
03-26-2015
Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120110771
Hearing No. 451-2010-00149X
Agency Nos. ARWSMR08OCT04477, and ARWSMR09AUG03515
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's October 14, 2010, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Agency's final decision (FAD) is AFFIRMED.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Telecommunications Specialist, GS-11, at the Agency's Central Range Section at the Holloman Air Force Base in New Mexico. As the result of a settlement agreement, Complainant was reassigned to his current position at the White Sands Test Center, Range Support Branch because it had the potential for substantial overtime and he was seeking the ability to accumulate compensatory time to cover absences for religious observances.
On July 22, 2008, Complainant's physician diagnosed him with occupational asthma and instructed him to avoid exposure to environmental triggers as much as possible. In a July 29, 2008 memorandum, Complainant notified the Chief of his diagnosis and asked to be reassigned to a position that removed him from the environmental triggers that prompted his asthma attacks. Complainant asked to work away from the field environment at the Clark Site. The next day, Complainant suffered an acute asthma attack at work and was taken by ambulance to a clinic. In an August 4, 2008 note, Complainant's physician wrote that he needed to avoid situations that provoked his lung disease. The physician indicated that Complainant needed to avoid hot, outdoor job locations and his work environment should be limited to indoor, climate-controlled settings with clean air. In an August 2008 email, Complainant asked for assistance with job assignments and lifting restrictions imposed by his managers. Complainant indicated that even though his position description and the restrictions imposed by his doctor were similar, he had been relegated to doing nothing by management. In an August 27, 2008 note, Complainant's physician wrote that due to Complainant's asthma he should work in an in-door air conditioned environment and should avoid the desert and weapon impact sites.
Complainant maintained that management treated him in a hostile manner. On September 9, 2008, Complainant attempted to troubleshoot problems with the computer system through the radio room. Telecommunications Specialist-3, wrote an email to the Chief that Complainant had been told to not enter the radio room and yet he continued to do so. Telecommunications Specialist-3 noted that Complainant lacked knowledge of the circuitry, and also wrote that in light of the high voltage and heat generated by the circuits, he did not "need people messing around especially when they have health issues that could cause them to pass out if they get around heat or dust." Telecommunications Specialist-3 lamented that other employees had learned to work around ongoing problems with the email and internet connections, but Complainant expected immediate responses to his internet problems. Telecommunications Specialist-3 noted that he felt that he had to walk on "egg shells" around Complainant. Complainant was upset regarding this email and he maintained that his internet access was being intentionally disrupted and that there was no problem with the internet when other employees used it. Complainant was instructed to stay out of the radio room.
By memorandum dated September 25, 2008, the Information Management Division Chief placed Complainant on administrative leave from September 28 through October 11, 2008, pending a determination of his work concerns related to his health. On November 18, Complainant told management that he had initiated an EEO complaint. Thereafter, Complainant was handed a Standard Form 78, Certificate of Medical Examination, identifying the functional requirements of his position. Complainant asserts that this form became the basis for his subsequent disqualification from his job.
On May 8, 2009, Complainant was notified by letter that there was no position at his present station that could reasonably accommodate his disability. On May 12, 2009, the Occupational Health Physician upgraded Complainant's limitations. He recommended that Complainant be allowed to drive on paved roads, and that he could perform outdoor duties at his worksite on the main post. In a May 14, 2009 letter, Complainant's physician indicated that his asthma was under good control and that he could work at his duty station with some restrictions. Those restrictions included limiting outside work to two hours per shift, avoiding weapon impact sites, avoiding rocket launch sites for two hours after launch, and avoiding sites with visible smoke. Notwithstanding, on June 4, 2009, Complainant received notification that the Agency was unable to locate a position for him. Complainant was advised to contact the Civil Personnel Office for further options. On June 15, 2009, the Occupational Health Physician recommended that Complainant continue with the restrictions listed in his physician's letter.
In June 2009, Complainant was given a driving assignment, and a truck unloading project. With respect to both, Complainant contends that he was treated in a hostile manner. On or about June 30, 2009, Complainant was placed on paid administrative leave. He came back to work on or about July 13, 2009, and then was placed on paid permanent administrative leave until about July 27, 2009. By letter on July 22, 2009, Complainant was cleared to return to full duties. On July 24, 2009, Complainant maintains that a sample email was sent to his coworkers soliciting complaints about him. Complainant maintained that the email instructed the recipients to change the wording of their emails so that they did not look like form letters or like they were copied. These emails were then sent to management requesting that the authors not have to work with Complainant upon his return.
On August 26, 2009, Complainant received a phone call from the Chief informing him that he was under investigation about an August 14, 2009 incident in which he allegedly used profanity in reference to a coworker.
On December 17, 2008, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), religion (United Church of God/Christian), disability (occupational asthma), and reprisal for prior protected EEO activity when:
Docket Number ARWSMR08OCT04477
1. On September 23 and 25, 2008, Chief, Central Range Section, denied him the opportunity to work religious compensatory time hours and therefore denied his request for religious compensatory leave;
2. In a phone call sometime between August 25 and September 1, 2008, he was told in a hostile manner and tone that he had no disability rights and then the phone was hung up on him;
3. On September 19, 2008, the Chief and Lead Telecommunications Specialist (LTS) denied his request for work assignments within the scope of his disability;
4. On September 19, 2008, LTS denied him access to work areas and told him that he should not be in the Clark Site radio room;
5. On September 25, 2009, Information Management Division Chief (IMDC), referred to his emergency room clinical analysis as "this is nothing;"
6. In September 2009, the Chief attempted to cover up the harassment when his internet and email services were interrupted;
7. On November 18,2008, the Supervisor responded to his request for time off for religious observances by saying, "when you challenge a supervisor, it's off with your head;"
8. On November 18, 2008, the Supervisor and the Chief developed physical and environmental job standards that were designed to exclude him from his job even though the physical limitations of other employees were accommodated.
On September 17, 2009, Complainant filed a second complaint, Docket Number ARWSMR09AUG03515. Complainant alleged that he was subjected to harassment based on reprisal for prior protected EEO activity when:
9. On June 26, 2009, the Chief and the LTS assigned him duties beyond his physical capabilities;
10. On June 29, 2009 while the Telecommunications Specialist was unloading communication reels from his truck, he and the LTS made threatening comments to Complainant and the Telecommunications Specialist, acting on the LTS instructions, threw several heavy reels of communication cable at him;
11. On August 10, 2009, Telecommunications Specialist-3 showed him a July 24, 2009 email allegedly orchestrated by the Chief and the LTS to undermine his character and credibility and it was sent it to multiple recipients by Telecommunications Specialist-2; and
12. On August 26, 2009, the Chief badgered and harassed him during a phone call by informing him that he was conducting an investigation into claims filed by the LTS and the Telecommunications Specialist.
Following an investigation by the Agency, Complainant's complaints were consolidated. Complainant requested a hearing before an EEOC Administrative Judge (AJ) but thereafter withdrew his request and asked for a FAD. The Agency issued a FAD, which found that Complainant failed to show that he was subjected to discrimination on any bases and/or harassment.
With regard to incident 1, the Agency indicated that Complainant was allowed 23 hours of compensatory time in 2008. The Agency explained that the building where most overtime work took place was under construction during June and July 2008, and that Complainant's medical restrictions did not permit him to work in buildings that were under construction. Further, management explained that initially Complainant was not assigned overtime because his supervisor did not believe that he had a required certification which was necessary for performing field work. Later, Complainant was allowed to work overtime until he was placed on medical restrictions and during that time he had only worked about 23 hours of compensatory time. Further, the Agency explained that Complainant was never denied the opportunity to take time off for religious observances. In fact, the Agency maintained that it advanced Complainant 55 hours of compensatory time for religious observances.
The FAD also indicated that Complainant was not assigned more difficult job assignments than others. Management explained that everyone was assigned the task of picking up field wire if they were not working on some other task because this task had to be completed. The Agency noted that Complainant was provided support from a coworker who indicated that he thought Complainant may have been assigned this activity consecutively during a one to three week time period. Although the Agency doubted that this was the case, the FAD noted that the coworker admitted that he did not believe that the assignments were issued because of any employee's race, religion, disability, or prior EEO activity.
With regard to claim 2, Complainant being told that he had no disability rights, the Chief maintained that he did not clearly recall the conversation but denied hanging up on Complainant or telling him that he had no disability rights. Management explained that Complainant was told that he could not be given an assignment because he did not have a release from his doctor and the conversation involved the restrictions required by Complainant's physician.
With regard to claim 3, Complainant alleged that he was denied an opportunity to perform work within the scope of his restrictions. Management explained that Complainant doctor's restrictions indicated that he could not work outside, but only indoors. The Chief added that until he got a doctor's release, he could not put Complainant in any type of outdoor environment because he required clean air. The Chief also added that Complainant could not drive, pull weeds, or sweep. He indicated that there was no inside work that Complainant could do in a controlled environment except for inventory, because dust was prevalent in areas such as the radio room. The Chief asserted that although Complainant said that he could return to the field and start working, he could not make such assignments because of the restrictions in Complainant's medical documentation.
With regard to claim 4, Complainant's allegation that he was restricted from the radio room, management explained that Complainant was restricted from the Clark Site radio room for health and safety reasons. Management noted that there was high voltage in the room. The Lead Technology Specialist claimed that when he gave Complainant the instruction to not come into the radio room he was not aware of his occupational asthma, but was aware that Complainant had previously fainted, and did not want anything to happen to him without someone knowing that he was in the room. The Lead Technology Specialist also noted that other employees were admonished about the hazards of the radio room. He explained that when employees are sent into the room to work, telephone contact is maintained or two people are sent into the room together.
Regarding claim 5, Complainant maintained that the Division Chief told him, after an asthma attack and while reading Complainant's emergency room clinical analysis, "this is nothing." Management asserts that the Division Chief stated that he may have said "this tells me nothing" but that he did not say "this is nothing."
Regarding claim 6, the Agency explained that Complainant was not the only one that had internet and email communication disruptions and that once his modem was replaced he did not have additional problems.
With regard to claim 7, Complainant alleged that the supervisor said that when you challenge a supervisor, "it's off with your head." The supervisor denied using the phrases "off with your head" or "challenge your supervisor." He maintained that he was having a conversation with Complainant and they were talking in generalities. Complainant, he maintained, began talking about religion. According to the supervisor, he asked Complainant whether he had ever talked to his supervisor about his need for compensatory time for religious observances rather than merely sending email. The supervisor indicated that Complainant always emailed his request for compensatory time for religious observance and never just asked for the time. He viewed email has being impersonal. The supervisor asserted that he never denied any of Complainant's requests for religious compensatory time and had no problem accommodating Complainant's requests.
With regard to claim 8, Complainant maintained that within hours after he told management that he had initiated an EEO complaint, he was presented with a SF 78 that served as a basis for him to be disqualified from his position. The Agency indicated that Complainant asked for documentation regarding the physical and environmental factors pertaining to his job. Complainant stated that he was told that no SF 78 existed for his position, but that he was asked to sign a SF 78 that contained requirements that he could not perform do to his medical restrictions. Because he believed that the form would be used to disqualify him and was inconsistent with his position description, Complainant refused to sign it.
Management explained that the SF 78 was created within a couple of days of when Complainant asked for it. One supervisor noted that he was new to his position and did not realize that there were no SF 78s for Central Range Section employees. He said that he used an old SF 78 that had been used by another organization, and that all GS-11 Telecommunications Specialists received the same SF 78. He also explained that the discrepancies between Complainant's position description, and the SF 78 were attributable to the fact that the position description was 12 to 13 years old.
With regard to claim 9, Complainant maintained that the Chief spoke harshly to him after he indicated that he had taken a nap after picking up a part. The Chief explained that employees typically called in when they arrived at the pick-up point and, when Complainant failed to call in, he was concerned about Complainant's safety due to the fact that he had picked up the part two hours earlier.
The Chief stated that he did not speak to Complainant in an angry or hostile voice; did not refer to his EEO complaint; and did not recall saying that Complainant came to work to work, not to sleep. He did acknowledge asking Complainant for the names of personnel that Complainant maintained he had seen also sleeping on the job so he could take corrective action, but that Complainant refused to provide the names. Finally, he indicated that he told Complainant that when he returned, he still had to pick up field wire at White Sands, but that this was not in reprisal for Complainant's EEO activity.
Likewise, with regard to claim 10, Complainant maintained that the Lead Technology Specialist allowed a coworker to berate him, kick his truck, and roll a reel towards him while unloading a truck. Management explained that it investigated Complainant's contentions and could not find any evidence to corroborate his allegations. In fact, the Agency indicated that reels are in rectangular boxes and it would have been impossible to roll one at Complainant. However, the Agency maintained that even if the coworker had accused Complainant of sleeping on the job and had told him that he better watch what he said, Complainant presented no evidence that these comments were related to any protected bases.
With regard to claim 11, management indicated that after Complainant had been away from the worksite for a period of time, a coworker was told that Complainant was returning and that they would be working together. The coworker indicated that he did not want to work with Complainant. He was told that he should send an email to the supervisor and the Chief regarding his concerns. Subsequently, other employees also wrote letters regarding their desire not to work with Complainant. The Agency maintained that Complainant failed to show that the employees did not want to work with him based on his protected bases, or that the emails were orchestrated by management.
Finally with respect to claim 12, Complainant was told that he was the subject of an investigation for using profanity in referencing a coworker. Management explained that Complainant got upset that he could not get in contact with the coworker and swore regarding the coworker. Apparently, Complainant was using the wrong telephone number. Complainant's supervisor investigated Complainant's behavior during this incident and Complainant maintained that he could not remember what he said. Management cautioned Complainant about his language, and decided not to discipline him. According to the Agency, the investigation was not taken because of Complainant's protected bases.
The Agency therefore found that it had articulated legitimate, nondiscriminatory reasons for its actions and Complainant failed to demonstrate that the reasons were pretext for discrimination or that the incidents cited by Complainant were severe or pervasive enough to establish a hostile work environment.
CONTENTIONS ON APPEAL
On appeal, Complainant did not provide a brief.
The Agency contends that based on the totality of the record there is no basis to disturb the Agency's final decision. The Agency maintains that the Complainant's appeal amounts to nothing more than his disagreement with the Agency's decision.
ANALYSIS AND FINDINGS
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. We find that even if we assume arguendo that Complainant established a prima facie case of discrimination as to all bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions as was discussed above. We find that other than disagreeing with the Agency's decision, Complainant has provided no persuasive evidence which suggested that the Agency's actions were pretext for discrimination. Likewise, we note that in a number of claims there is a dispute between Complainant and management officials regarding private conversations. In each situation, we simply find no persuasive evidence that corroborates that these conversations took place in the manner that Complainant alleges. As we do not have the benefit of an Administrative Judge's credibility and factual determinations after a hearing, because Complainant chose a FAD instead, we can only evaluate the facts based on the weight of the evidence presented to us.
The Commission's regulations require an Agency to make reasonable accommodation for the known physical and mental limitations of a qualified individual with a disability unless it can show that accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o), 1630.2(p). A qualified individual with a disability is an "individual with a disability" who satisfies the requisite skill, experience, education and other job related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. � 1630.2(m).
For the purposes of this decision only, we will assume that Complainant established that he is an individual with a disability. Notwithstanding this determination, however, we find that he failed to show that he was denied reasonable accommodation. The record shows that the Agency assigned work to Complainant commiserate with his medical restrictions. We note that Complainant, on several occasions, argued that there was work that he could have performed; however, we find that: (1) management correctly denied these requests as they were not supported by his medical documentation; and (2) the Agency was not required to eliminate essential functions as a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002, General Principles, Reasonable Accommodation (as revised Oct. 17, 2002) (Guidance). Complainant also failed to identify a vacant, funded position to which he could have been reassigned. Therefore, we find that Complainant has failed to demonstrate that he was denied a reasonable accommodation.
Finally, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by 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 (Sept. 21, 2000).
Therefore, we AFFIRM the Agency's FAD which found that Complainant failed to show that he was subjected to discrimination and/or harassment.
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
___3/26/15_______________
Date
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0120110771
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110771