Greg R. Bjugstad, Complainant,v.Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionFeb 23, 2007
0120053601 (E.E.O.C. Feb. 23, 2007)

0120053601

02-23-2007

Greg R. Bjugstad, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.


Greg R. Bjugstad,

Complainant,

v.

Dr. Donald C. Winter,

Secretary,

Department of the Navy,

Agency.

Appeal No. 01200536011

Hearing No. 370-A5-0131X

Agency No. 02-32253-010

DECISION

On April 18, 2005, complainant filed an appeal from the agency's March

21, 2005 final order 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., 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 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 order.

At the time of events giving rise to this complaint, complainant worked

as a Welder Supervisor I, in Code 920 (Structural and Fabrication Shop),

at Pearl Harbor, Hawaii. On April 4, 2002, complainant contacted an EEO

Counselor and filed a formal EEO complaint on September 11, 2002, alleging

that he was discriminated against on the bases of race (Scandinavian),

color (White), disability (regarded as disabled due to skin condition),

age (D.O.B. 08/18/52), and in reprisal for prior protected EEO activity

(arising under Title VII), when:

(1) Complainant was denied annual leave for March 29, 2002; and

(2) Complainant was denied overtime work between September 11,

2001 and September 11, 2002.2

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 timely

requested a hearing. Over complainant's objection, the AJ assigned to

the case issued a decision without a hearing in favor of the agency on

February 10, 2005.3

In her decision, as to issue (1), the AJ found that the evidence shows

that complainant was granted leave for March 29, 2002. The AJ noted that

although complainant asked for annual leave and was granted sick leave,

there is no dispute that complainant was granted paid leave for the date

in question. Accordingly, the AJ found that complainant did not suffer a

tangible adverse employment action. As to issue (2), the AJ found that

the agency explained that complainant was not permitted to work overtime

while his medical restriction of wearing shirts without sleeves was in

effect pursuant to agency policies concerning the clothing to be worn

in an industrial environment. The AJ found that complainant provided no

evidence that this explanation was a pretext for discriminatory animus.

The agency subsequently issued a final order on March 21, 2005, adopting

the AJ's finding that complainant failed to prove that he was subjected

to discrimination as alleged.

On appeal, complainant asserts that his claims should have been considered

within a framework of a pattern of harassment/discrimination. Complainant

asserts that the agency considered him disabled and threatened him with

termination. He asserts that he has no disability, and that the agency

knew this. He asks that the case be remanded for a hearing. The agency

requests that we affirm the final order. As an initial matter we note

that, as this is an appeal from a final order 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).

To the extent that complainant contends that the incidents in this

complaint ought to be considered jointly within a hostile work environment

framework, we note that based on the standards set forth in Harris

v. Forklift Systems, Inc., 510 U.S. 17 (1993), in order to prevail on a

claim of harassment, complainant must prove that: (1) he was subjected to

harassment that was sufficiently severe or pervasive to alter the terms

or conditions of employment and create an abusive or hostile environment;

and (2) the harassment was based on his membership in a protected class.

See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on

Harris v. Forklift Systems, Inc. at 3, 6; Cobb v. Department of the

Treasury, EEOC Request No. 05970077 (March 13, 1997). Taken together,

the incidents in question, are not sufficiently severe or pervasive to

rise to the level of unlawful harassment.

Applying a disparate treatment framework, we note that the allocation of

burdens and order of presentation of proof in a case alleging disparate

treatment discrimination under Title VII, the ADEA and the Rehabilitation

Act, is a three step procedure: complainant has the initial burden

of proving, by a preponderance of the evidence, a prima facie case of

discrimination; the burden then shifts to the employer to articulate

some legitimate, nondiscriminatory reason for its challenged action; and

complainant must then prove, by a preponderance of the evidence, that

the legitimate reason offered by the employer was not its true reason,

but was a pretext for discrimination. McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973).

In this case, we will assume arguendo that complainant is regarded

as disabled, and therefore entitled to coverage pursuant to the

Rehabilitation Act. We will also assume that complainant has otherwise

established a prima facie case of discrimination on all of the alleged

bases. In this case, the agency has nevertheless articulated legitimate,

nondiscriminatory reasons for its actions, which complainant has not

shown, by a preponderance of the evidence, to be pretextual.

After a careful review of the record, the Commission finds that the

AJ's decision without a hearing was appropriate, as no genuine issue

of material fact is in dispute. See Petty v. Department of Defense,

EEOC Appeal No. 01A24206 (July 11, 2003). Therefore, we AFFIRM the

agency's final order.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 (S0900)

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 (Z1199)

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

February 23, 2007

__________________

Date

1 Due to a new data system, your case has been re-designated with the

above referenced appeal number.

2 Complainant also raised two additional incidents which the agency

dismissed for failure to state a claim. As complainant does not,

on appeal, provide any argument for why these issues were improperly

dismissed, we will not address them herein.

3 Prior to issuing her decision, the AJ reviewed complainant's and the

agency's responses to her Notice of Intent to Issue a Decision Without

a Hearing. The AJ also issued complainant a second Notice informing him

that he may supplement his response to the original Notice of Intent, by

citing to the record, and explaining how a document or certain testimony

raises a factual dispute on a material issue or otherwise raises an

inference of discrimination. Complainant filed a response stating, among

other things that he was not going to avail himself of this opportunity.

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01A53601

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036