0120102915
12-10-2010
Harry Young, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Harry Young,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120102915
Agency No. 200306572008101941
DECISION
On June 17, 2010, Complainant filed an appeal from the Agency's May 26, 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., 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 Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
During the relevant time, Complainant worked as an Insulator in the Pipe Shop at a St. Louis, Missouri Agency medical center. Complainant filed a formal EEO complaint alleging that the Agency subjected him to hostile work environment harassment on the bases of race (African American), disability (heart condition (stent)), age (50), and reprisal for prior protected EEO activity when (1) from May through December 2007, Complainant's immediate supervisor (S1) micromanaged him, (2) on October 29, 2007, S1 accused Complainant of stealing scrap metal and issued him a fine of $10251, (3) S1 forced Complainant to contact his doctor for medical documentation to substantiate his medical condition, (4) on or about November 10, 2007, Complainant was told there were no light duty assignments available and was sent home for a week (losing pay), (5) in March 2008, no one in Complainant's shop received safety glasses because S1 did not secure the order with his credit card, and (6) on or around March 15, 2008, a co-worker spread rumors that another coworker and Complainant needed to be watched for leaving their workstations during the day and S1 followed-up on the rumor.
The Agency conducted an investigation of Complainant's claim. During its investigation, S1 stated (1) he did not micromanage Complainant, (2) he was not involved with the theft accusations and Agency police is who conducted an investigation regarding the scrap metal and imposed fines, (3) Complainant's physician gave him medical restrictions for 90 days, so when that time period expired, S1 stressed the importance of getting additional fit-for-duty documentation/a medical release so that he could allow Complainant to continue working, which he allowed him to do for an additional 14 days without new documentation, (4) management allowed Complainant to work light duty for 104 days although his condition was determined to be unrelated to work and Human Resources indicated that it was against Agency policy to allow him to work beyond the 90 days authorized by his doctor, (5) management purchased prescription safety glasses for employees who needed them, S1 had to wait for funding to order the glasses, and Complainant was one of the first in his department to receive his glasses, and (6) he does not act or react based on rumors.
At the conclusion of its investigation, the Agency provided Complainant 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 but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency found that Complainant alleged actions that did not rise to the level of a hostile work environment and failed to show the actions were based on impermissible motives. The instant appeal from Complainant followed, without substantive comment.
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at 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").
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985). A single incident or group of isolated incidents will not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation must be determined by looking at all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).
To establish a prima facie case of hostile environment harassment, complainants must show that: (1) they are a member of a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; and (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment. Humphrey v. U. S. Postal Service, EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. �1604.11. The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).
In the instant case, we find that, assuming the actions Complainant alleged rose to the level of a hostile work environment, Complainant failed to show that said actions were based on discriminatory motives. 2 Additionally, to the extent that Complainant alleged disparate treatment, we find that he failed to show pretext by a preponderance of the evidence. Based on the above, we AFFIRM the final agency decision.
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
___December 10, 2010______
Date
1 We note that Complainant stated that the charge was later dropped by the Agency.
2 We assume for the purpose of analysis that Complainant is an individual with a disability. See 29 C.F.R. � 1630.2(g)(1).
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0120102915
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102915