0120083650
08-21-2009
Estate of Dennis Gumz, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Estate of Dennis Gumz,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120083650
Agency No. APHIS-990212
DECISION
On May 30, 2008, complainant's estate filed an appeal from the final
decision of the agency concerning his complaints of unlawful 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., Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final decision.
BACKGROUND
In May 1991, complainant was hired as a Plant Protection and Quarantine
Officer (PPQO), and assigned to a post in Kendall, Florida. A year
later, he was promoted to a GS-7 level position. He remained in Kendall,
Florida until March 1993. In April 1993, complainant was assigned as a
PPQO, GS-9, Animal and Plant Health Inspection Services (APHIS), Plant
Protection and Quarantine (PPQ), in Brownsville, Texas.
In January 1995, complainant underwent surgery to repair a hiatal hernia.
In March 1995, complainant returned to work and was placed on light-duty
assignment. On July 13, 1995, complainant was notified that his light
duty had ended and that he must submit supplemental medical documentation
if he required further accommodation. By letter dated July 17, 2005,
complainant's physician (Physician 1) stated that complainant needed
45-minute meal periods as an accommodation due to his gas bloat problems;
should not be required to attend any meeting for more than 50 minutes
because, as a result of his surgery, complainant needed to pass gas; and
recommended that complainant be placed on a set day-shift rather than
a rotating shift schedule because patients such as complainant with an
irritable bowel did poorly with night work. Complainant's first level
supervisor (S-1) agreed to the 45-minute lunch break. However, S-1
stated that complainant would be required to attend meetings longer than
50 minutes but could leave as needed to pass gas. S-1 also determined
that because Physician 1 did not indicate that it was medically necessary
to limit complainant to a set day-shift, he would be required to rotate
shifts. Complainant was returned to the general workforce and assigned
to rotating shifts.
By letter dated August 21, 1995, Physician 1 described complainant's
medical conditions as "complex functional gastrointestinal problems,"
including "post-gastrectomy syndrome." Physician 1 stated that
complainant could not rotate between shifts and needed a consistent
assignment to a day or night shift to regulate eating and bowel movements.
Physician 1 also recommended that, because complainant's condition
resulted in uncontrollable, excess, foul-smelling flatus, complainant
be able to pass gas away from others and given working conditions that
met his needs.
During the same period, complainant was diagnosed with Morton's neuromas
and peripheral neuropathy in his feet. On August 1, 1995, complainant's
podiatrist (Physician 2) asked that complainant be allowed to wear
brown boots as an accommodation, and not the black shoes required by the
agency's uniform regulation. By letter August 22, 1995, another physician
(Physician 3) recommended that, due to complainant's neuromas condition,
complainant should avoid uneven surfaces that produced more pressure on
one point on the bottom of the foot, and described rocks and railroad
tracks as examples of unacceptable walking surfaces.
On August 29, 1995, S-1 notified complainant that his light-duty
assignment would end effective September 15, 1995. S-1 determined
that based on complainant's medical restrictions, complainant could not
perform the essential functions of his job.1 Specifically, the agency
concluded that it did not have a position which was free from social
contact and there was no position where they could place complainant
which would guarantee he would not have to walk on mechanically-crushed
rock. The agency determined that it could not reasonably accommodate
him and that there was no light-duty position at the Brownsville Work
Unit to which complainant could be assigned indefinitely.2 The agency
informed complainant that if his medical requirements were temporary
and requested by his doctors, the agency would review his requests and
attempt to reasonably accommodate him. S-1 also informed complainant
that he could apply for Leave Without Pay (LWOP) given that he had
exhausted his paid leave, but would be place on Absence Without Leave
(AWOL) if he did not request LWOP. Complainant elected not to request
LWOP and was placed on AWOL on November 20, 1995.
On March 19, 1996, S-1 again notified complainant that the agency could
not accommodate his disabilities indefinitely and said that his requested
accommodations did not allow him to perform his essential duties.
S-1 added that the areas complainant claimed he could work in were not
consistent with his medical documentation and requested accommodation.
Complainant remained in AWOL status because he had not requested approved
leave.3
On April 22, 1996, complainant filed two separate formal EEO complaints.
The complaints were consolidated for processing under Agency No. 960502.4
In his complaints, complainant alleged discrimination based on his race
(German/Northern European), disability (unspecified), and age (53) when
he was not selected for the position of PPQO; and when he was placed on
Absence Without Leave effective November 25, 1995.
On May 15, 1996, the agency determined after considering several options
that complainant could not be reasonably accommodated. Management
concluded that complainant could not perform the essential functions
of his position. On June 27, 1996, management issued a proposal to
terminate complainant based on his medical restrictions and inability to
perform essential functions. Management advised complainant to consider
disability retirement.
On July 25, 1996, complainant filed another formal EEO complaint, alleging
discrimination based on his race (White), age (53), and reprisal when
he was not selected for the Rapid Response Team.5 On August 30, 1996,
complainant entered into a settlement agreement with the agency, in which
he agreed to withdraw his complaints and pursue disability retirement.
On April 18, 1997, complainant's disability retirement application was
denied. The Office of Personnel Management (OPM) found that complainant's
medical evidence failed to substantiate a disabling medical condition
that warranted restriction from performing the critical or essential
duties of his position. Accordingly, his complaints were reinstated
and accepted for investigation.
By letter dated June 13, 1997, management informed complainant that it
could not indefinitely accommodate him without imposing an undue hardship
on the agency, and therefore he would be terminated effective June 30,
1997. However, on June 27, 1997, management rescinded complainant's
termination and informed complainant that after review of his latest
medical information, it determined that the only accommodation he required
was exclusion from railroad inspections. Accordingly, complainant was
instructed to report for duty on July 16, 1997. Complainant requested
to postpone his report to work date to September 2, 1997, and the agency
granted his request.
Subsequently, by letter dated August 25, 1997, complainant was notified
that the agency proposed to terminate him based on inappropriate
conduct: making irresponsible statements in correspondence to agency
personnel that attacked the integrity of government officials, including
the President; making pejorative references to the race and national
origin of Brownsville Port employees; and engaging in verbal misconduct
against a USDA employee with respect to inquires regarding a selection
decision for a position vacancy. According to management, complainant
made discriminatory comments to other employees and he verbally abused
an employee in the Central Region and another in the Northeast Region.
Complainant's removal was effective on November 23, 1997.
On December 11, 1997, complainant filed a formal EEO complaint (Agency
No. 990212) alleging that he was discriminated against on the bases of
race (White), national origin (Nordic/German/Polish), sex (male), color
(White), disability (60% disabled veteran), age (54), and in reprisal for
prior protected EEO activity when the agency terminated his employment.
Complainant also filed a formal EEO complaint alleging discrimination
based on his age, sex, race/color, national origin, and disability
when the agency failed to post a vacancy announcement on complainant's
location; he was denied a lateral transfer; and he was not selected for
several positions.6
On December 22, 1997, complainant filed an appeal with the Merit Systems
Protection Board (MSPB) contesting his termination, the denial of his
1996 request for a lateral hardship-transfer, and failure to select
him for certain positions. That appeal was dismissed as premature.
The MSPB Administrative Judge (AJ) found, among other things, that the
MSPB could not adjudicate the termination decision because complainant had
filed a formal EEO complaint before filing the MSPB appeal. See Dennis
F. Gumz v. Department of Agriculture, MSPB Docket No. DA-0752-98-0140-I-1
(February 23, 1998).
On March 16, 1998, the agency consolidated all complainant's complaints
for investigation. At the conclusion of the investigation, complainant
was provided with a copy of the consolidated Report of Investigation and
notice of his right to request a hearing before an EEOC AJ on Agency
Nos. 960729, 960502, and 980209.7 On December 23, 1998, complainant
was informed that his termination claim (Agency No. 990212) would be
processed as a mixed-case complaint and that a Final Agency Decision
(FAD) would be issued with appeal rights to the MSPB.
On May 10, 1999, complainant passed away. The processing of his EEO
complaints proceeded.8 Numerous Reports of Investigation were produced in
the investigation of this case.9 On June 26, 2007,10 the agency issued
a FAD consolidating all the complaints. The agency concluded that
discrimination did occur when complaint was placed on Absence Without
Leave (AWOL) status effective November 25, 1995. As a result of its
finding, the agency ordered, among other things, the following corrective
action: payment to complainant's estate of the appropriate amount of back
pay and benefits for the period from September 16, 1995 until September
29, 1997; and payment of compensatory damages and attorney's fees.
The agency found no discrimination with regard to the remaining claims.
Regarding complainant's removal, the agency concluded that complainant
failed to prove that he was subjected to discrimination as alleged.
Specifically, the agency found that complainant failed to establish that
its proffered legitimate, non-discriminatory reasons for his removal
were a pretext for unlawful discrimination.
On July 31, 2007, complainant's estate timely filed an appeal with the
MSPB concerning complainant's removal. The MSPB dismissed the appeal for
lack of jurisdiction. Specifically, the MSPB AJ found that the statutes
which authorize an appeal to the Board allowed only employees and former
employees to bring an appeal, not their estates. See Estate of Dennis
Gumz v Department of Agriculture, MSPB Docket No. DA-0752-07-0501-I-1
(November 29, 2007). Subsequently, complainant's estate filed a petition
for review with the Board. The Board issued its final order on April 30,
2008, denying the petition. On May 30, 2008, complainant's estate filed
an appeal to the Commission concerning complainant's removal (EEOC Appeal
No. 0120083650).
On December 1, 2008, complainant filed a second appeal (EEOC Appeal
No. 0120090730), challenging the attorney's fees awarded by the agency.
On April 9, 2009, complainant's estate filed another appeal (EEOC Appeal
No. 0120092125), this time contesting the agency's compensatory damages
award.
EEOC Appeal No. 0120083650
As discussed below, complainant's estate filed this appeal contesting
his removal after the MSPB dismissed the matter for lack of jurisdiction.
The Commission has held that where an individual files an appeal
with the MSPB which is dismissed for lack of jurisdiction, the matter
will not be viewed as a "mixed case." Rather, it will be treated as a
"non-mixed" matter and processed accordingly. See Schmitt v. Department
of Transportation, EEOC Appeal No. 01902126 (July 9, 1990) (sets forth
the policy of the Commission assuming jurisdiction over cases dismissed
by the MSPB for lack of jurisdiction); Phillips v. Department of Army,
EEOC Request No. 05900883 (October 12, 1990); 29 C.F.R. � 1614.302(b).
Where the MSPB dismisses for lack of jurisdiction, the agency must
resume processing the matter from the point processing ceased under 29
C.F.R. Part 1614 (the EEO informal and formal complaints process).
However, we do not remand this matter to the agency for processing
under the above cases and regulation because the agency previously has
processed complainant's complaint and, as complainant's estate requested,
issued its FAD on June 26, 2007. Moreover, complainant's estate does
not request on appeal that the instant case be returned to the agency
for appropriate mixed-case processing. Accordingly, we will proceed
with the issuance of this decision on the merits of the claim.
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 (or in
this instance, his estate) must satisfy the three-part evidentiary scheme
fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). He must generally establish a prima facie case
by demonstrating that he 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). The prima
facie inquiry may be dispensed with in this case, however, since the
agency has articulated legitimate and nondiscriminatory reasons for its
conduct. See United States Postal Service Board of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is a pretext for discrimination. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Assuming arguendo that complainant established a prima facie case of
race, national origin, sex , color, disability11, age, and reprisal,
we find that the agency articulated a legitimate, non-discriminatory
reason for its actions. Specifically, the agency removed complainant
because of his irresponsible statements and unprofessional conduct in
violation of the agency standards of conduct (USDA APHIS Directive
4735.1, "Employees Responsibilities and Conduct"). Specifically,
by letter dated April 10, 1997 to a Human Resource Office's employee,
he wrote, "Why does your "Quack" USDA Medical Officer..." In another
statement in the same letter, he wrote: "...is the Current White House
Dictator interested in only hiring more workers who will vote Democrat?"
The record reveals that complainant constantly made derogatory racial
comments, displayed racial prejudice against minorities (Hispanic,
Blacks, Vietnamese and Jews) and women in the workplace, and lacked
respect for authority. Many co-workers testified that complainant was
always making racial slurs about minorities, made frequent comments about
"Mexican people," and engaged in "upsetting" conduct toward Mexican
nationals and Mexican-American coworkers.
Co-workers also testified that complainant often talked about White
Supremacy groups and the Ku Klux Klan. For example, complainant
reportedly said that the KKK should be lined up on the border in the
Brownsville area to stop illegal immigration. Further, the Texas State
Plant Health Director (Texas SPHD) testified that in, deciding to remove
complainant, he [Texas SPHD] considered complainant's disciplinary
record, which included a 14-day suspension for similar misconduct;
his inability to get along with coworkers; his undependability;
the effect of the offense on his ability to perform his duties;
and the fact that complainant had clearly been warned about such
behavior on several occasions. Further, a Senior PPQO stated that
complainant's conduct created a hostile work environment, and that
complainant was confrontational. Finally, the Port Director (Director),
who was complainant's supervisor for a time in Brownsville, described
complainant as a "person who did not get along with his co-workers, who
was confrontational and who had an unpredictable temper." The Director
also stated that complainant created a hostile work environment and
a number of employees avoided work assignments with him because he
engaged in profane outbursts in public areas and frequently made racial
comments.12
Because we have determined that the agency articulated a legitimate,
non-discriminatory reason for complainant's removal, the burden shifts
to complainant to establish by a preponderance of the evidence that
the agency's reason was a pretext for discrimination. We note that
complainant did not dispute that he made the racial comments, nor his
inappropriate conduct. Moreover, when complainant received the Notice of
Removal, he responded to each allegation, "I am entitled to my opinion."
Complainant added that his language and comments were part of his
"culture and writing style." In his affidavit, complainant stated that
his "right to exercise freedom of speech supersedes the Agency's right"
to tell him what he may not say.
On appeal, complainant's estate contends that other coworkers engaged
in similar misconduct or worse than that of complainant, but were not
subjected to discipline. Further, complainant's estate alleged that
each and every one of the "irresponsible statements" that he allegedly
made occurred when he was not in official status because he was on AWOL.
Complainant's estate argued that the agency refused to accommodate
complainant, and instead removed him allegedly for misconduct as a pretext
for discrimination. Specifically, complainant's estate alleged that
officials repeatedly were motivated to terminate complainant to avoid
providing him reasonable accommodation. Complainant's estate pointed
out the three prior attempts to remove complainant from employment due
to his disability. Complainant's estate also pointed out, as other
evidence of pretext, complainant's performance appraisal for the period
October 1, 1996 to September 30, 1997, in which complainant was rated
"Fully Successful," under Performance Element No.5, "Teamwork/Civil
Rights."13 Complainant's estate argues that the agency's action to
remove complainant for improper conduct was in contradiction with its
performance appraisal.
To the extent that complainant's estate is alleging that the agency failed
to provide complainant reasonable accommodation, we find that the issue
was part of a previous complaint, and is not part of the instant appeal.
Specifically, we note that the agency's final decision concluded that
complainant was not denied reasonable accommodation, and that complainant
did not appeal this decision. Therefore, we will address only the matter
of whether complainant established by a preponderance of the evidence
that the agency's articulated reason for his removal - improper conduct -
was a pretext for unlawful discrimination.
We are not persuaded, based on the record of investigation, that
complainant has shown that the agency's articulated reasons for his
removal were a pretext for unlawful discrimination based on complainant's
protected classes. As noted above, complainant's interpersonal problems
and inappropriate behavior were corroborated by several witnesses.
Moreover, complainant did not deny the alleged misconduct. Complainant
argued that other employees engaged in worse conduct and they were not
removed, but he failed to show any evidence of who those employees were
or the conduct they committed in order to prove disparate treatment.
Further, although complainant was rated "Fully Successfully," we find
that he was rated based on his work performance and not his conduct.
It is not clear form the record how complainant was rated or by whom, but
we note that during the period of October 1, 1996 to September 30, 1997,
in which complainant was rated "Fully Successful," he was in AWOL status.
Moreover, the Commission's Enforcement Guidance on the Americans with
Disabilities Act and Psychiatric Disabilities at Question 30 specifically
indicates that an employer may discipline an individual with a disability
for violating work place conduct standards even if the misconduct results
from a disability. Further, to the extent that complainant argued that
the agency should have accommodated him after the incidents instead of
removing him, Question 31 of the same guidance states that reasonable
accommodation is prospective and employers are not required to excuse
past misconduct. Finally, to the extent that complainant is arguing
disparate treatment; he has not shown that the agency's reasons for its
actions were a pretext for discrimination.
On appeal, complainant's estate argues that, in the alternative, that this
matter should be addressed under mixed-motive analysis. "Mixed motive"
cases are those where a finding is made that discrimination was one of
multiple motivating factors for an employment action, i.e., in which
the agency acted on both lawful and unlawful reasons. See EEOC Revised
Enforcement Guidance on Recent Developments in Disparate Treatment Theory,
N-915.002, 21 (July 14, 1992). Based upon this definition, we find that
the present case cannot be characterized as a mixed-motive case, because
the agency has articulated legitimate, non-discriminatory reasons for its
action; namely, complainant's irresponsible statements and unprofessional
conduct. We find no evidence that the agency's reasons lack credibility
or are a pretext for discrimination or retaliation.
Accordingly, we find that complainant failed to establish by the
preponderance of the evidence that he was discriminated against as he
alleged.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we affirm the agency's
final decision finding no discrimination.
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
August 21, 2009
Date
1 According to Physician 3, complainant was unable to perform railroad
inspections because of railroads tracks, rocks and ladders; maritime
inspections because of the need to walk on uneven boards; aircrafts
inspections because of narrow stairs, compartments, and ladders; cargo
inspections because of debris on floors, uneven surfaces, ladders and
narrow steps; and secondary vehicle and pedestrian vehicle inspections
because of narrow steps, ladders, and uneven and obstructed floors.
2 Complainant was accommodated from March 1995 to September 1995.
3 It is not clear from the record how long complainant remained in AWOL
status.
4 Agency Nos. APHIS-1996-01550; and APHIS-1996-01551 (formerly Agency
No. 960502).
5 Agency No. APHIS-1996-01552 (formerly Agency No. 960729).
6 APHIS-1997-00007 (formerly Agency No. 980209).
7 Complainant requested a hearing only on Agency No. 980209.
8 His estate is represented by his widow, Mary Gumz.
9 They will be identified as follows: a Supplemental ROI dated February
12, 1999; a Supplemental ROI dated March 7, 2003; and a Supplemental
ROI dated December 16, 1998.
10 There is no explanation for the lengthy delay in issuing the final
agency decision. The Commission finds such a delay to be a matter of
concern.
11 For the purposes of analysis only, we assume, without so finding,
that complainant was an individual with a disability.
12 As an example of racial comments, the Director cited that once
complainant said "If the Germans used methyl bromite (a gas used in the
insect fumigating facility at Brownsville), the Germans would have had
a better kill of Jews."
13 The standard describing fully successful performance is: "Participates
in the completion of tasks which have been "handed off" to the team in a
manner which consistently demonstrates fairness, cooperation, and respect
towards co-workers, management, and all internal or external customers.
Works cooperatively with other members to complete team and/or individual
tasks in an effective, efficient and timely manner...."
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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