01a41012
07-20-2005
James Hazlett (a.k.a. Howlingwolf), Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.
James Hazlett v. Department of Agriculture
01A41012
July 20, 2005
.
James Hazlett (a.k.a. Howlingwolf),
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A41012
Agency No. 010355
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his EEO complaint 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. 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.
During the relevant time, complainant was employed as a Residential
Advisor, GS-0186-7, at the agency's Forest Service, Wolf Creek Job
Corps Center (Center) in Glide, Oregon. Complainant filed a formal EEO
complaint on November 21, 2000. Therein, complainant claimed that he
was subjected to harassment and a hostile work environment on the bases
of race (Native American), national origin (Native American), religion
(not specified), age (D.O.B. 1/3/43), and in reprisal for prior EEO
activity when:
(1) on July 25, 2000, complainant was left alone and in charge of the
entire student population (over 200 students). As a result, complainant
was placed in a violent working environment and was assaulted by one of
the students. Complainant sustained physical injuries that placed him
on temporary disability. Complainant alleged that management failed to
follow proper procedures for:
(a) providing him with medical attention;
(b) reporting the assault; and
(c) investigating the result;
(2) management attempted to intimidate complainant into believing he
was responsible for the assault. Also, on July 26, 2000 and September
3, 2000, management attempted to discuss the assault with complainant,
despite the fact that management was ordered not to do so;
(3) complainant received no support or training from management to help
ensure his safety and believed management lacked an interest and concern
for violence in the workplace. Complainant believed that management
failed to protect employees, ignored existing, ongoing workplace
violence problems and neglected to set guidelines for dealing with
violent student behavior;
(4) Job Corps supervisors singled complainant out and required him to
deal with violent student/tough cases;
(5) Job Corps supervisors allowed religious materials to be distributed
to students and staff which offended complainant's religious beliefs;
(6) management required complainant to use his years of experience and
training in the medical field to diagnose and treat students;
(7) in April 2000, complainant was denied a Quality Step Increase
promotion; and
(8) management scrutinizes complainant's arrival and departure times
by monitoring his "every move by the clock."
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its October 16, 2003 FAD, the agency found no discrimination.
The agency determined that complainant failed to establish a prima facie
case of race, national origin, religion, age, or reprisal discrimination.
Specifically, the agency concluded that complainant did not demonstrate
that similarly situated employees, not in his protected classes were
treated more favorably under similar circumstances. As to complainant's
reprisal claim, the agency found no record that complainant had engaged
in prior protected activity.
The agency also found that assuming complainant established a prima
facie case of discrimination under any of the bases that were raised,
agency management articulated legitimate, nondiscriminatory reasons
for its actions which complainant failed to show were a pretext for
discrimination.
Regarding complainant's harassment claim, the agency concluded that
complainant failed to prove that he was subjected to harassment
sufficiently severe or pervasive so as to render his work environment
hostile.
Regarding claim (1), complainant's second-level supervisor (S2)
stated that while the division has 22 staff members, the number of
supervisors and staff assigned to a shift varies throughout the workweek.
S2 further stated that on July 25, 2000, there were 12 staff working
and 211 students. S2 stated that out of the 211 students, there were
approximately 59 students on "Off Center Recreation Trips." S2 stated
that at approximately 6:15 p.m. there was a total of 7 staff members and
152 students at its facility. S2 stated that after he received a voice
message from an agency official concerning a confrontation between two
students, he left his office to inform complainant's acting supervisor
(AS), complainant and other staff members of the confrontation. S2
stated that when he stepped out of his office building, he saw AS
and complainant talking and joined their discussion concerning the
confrontation. S2 stated that after AS indicated that he would take
care of the situation, he left the Center. S2 stated that approximately
20 to 30 minutes after he left the Center, he received a call from AS
stating that there was an incident in which a student "sucker punched"
another student; and that complainant was "bumped and knocked down when
he tried to break up the incident" between the two students. S2 stated
that according to the AS, complainant was fine. S2 stated that during his
conversation with AS, he "did not sense any urgency or that [Complainant]
was hurt or in a crisis situation."
Moreover, S2 stated that the possibility for a staff member or student
"to be put in danger of violence at Wolf Creek Job Corps Center, similar
to any other Job Corps Center, or Public High School is a potential."
S2 further stated that they hold their students accountable through their
discipline system as needed. Furthermore, S2 stated in ten years at Wolf
Creek Job Corps, this was the only incident of which he was aware that
a staff member was injured in dealing with an incident between students.
Regarding claim (1)(a), S2 stated that on July 25, 2000, sometime
between 10:00 p.m. and 11:30 p.m. he received a call from AS stating
that complainant "seems very upset." S2 stated that he then spoke
with complainant and asked him how he was doing. S2 stated that after
complainant stated that he was a little sore, he asked complainant if
he wanted to go to the emergency room to be checked out. S2 stated
that complainant later agreed to have a named Residential Living staff
member take him to the emergency room. S2 stated "I agreed and also told
[Complainant] that I would put him on Administrative leave with pay the
following 2 days - Wednesday and Thursday."
Regarding claims (1)(b) and (c), S2 stated that in the evening of
July 25, 2000, he called his supervisor and reported the incident.
S2 further stated that he was later asked to document the events of
July 25, 2000, several weeks after the incident, and that he did so.
S2 stated that the police were called and the incident was reported
to them. S2 stated that according to AS, the named student "was not
arrested and was not charged with assault because he [Complainant]
was not the intent of his aggression." Furthermore, S2 stated that
[a named Residential Living Supervisor] investigated the incident, and
that the named student was held accountable through the discipline system.
The record further reflects that complainant's third-level supervisor
(S3) stated that following the July 25, 2000 incident, the named student
was sent home pending the outcome of the Center Review Board (Board)
examination of the incident. S3 further stated that the Board found the
named student guilty of participating in the incident, and terminated him
from the Job Corps program in accordance with its Zero Tolerance policy.
Regarding claim (2), S2 stated that management did not attempt to
intimidate complainant into believing he was responsible for the July 25,
2000 incident. S2 further stated he attempted to reassure complainant
that he had handled the incident appropriately. S2 stated that on July
26, 2000, he was informed that his supervisor was at complainant's house
to talk with him about the incident, and he decided to go to complainant's
house. S2 stated that when he arrived, his supervisor informed S2 that
complainant did not want to see him so he left "as requested." S2 stated
"I have not attempted to talk with [Complainant] about this issue since
I went to his house on July 26, 2000."
The record further reflects that the Acting Center Director (Acting
Director) stated that on July 26, 2000, during his visit with complainant
at his house, complainant did not say anything about being harassed or
being subjected to a hostile work environment.
Further, AS stated "I did not indicate directly or indirectly that he was
in anyway responsible for the assault by [Named Student] on himself or
[Named Student]."
Regarding claim (3), S2 stated that there are various kinds of training
that take place at the Center on a regular annual basis. S2 further
stated that every two years, the Center hires a consultant to work
with staff members and students on effective principles of student
leadership, and how to deal with difficult students and situations.
S2 stated that every year, each employee and his/her supervisor set up
individual training plans. S2 stated that complainant was given the
same training opportunities as other staff members, but "did not always
take advantage of them."
Further, the Acting Director stated that in November 1999, the Center
developed procedures to respond to workplace violence and set up a
forest-wide response team. The Acting Director further stated "we brought
this procedure back to the center and asked our first level supervisors
to share it with the counselors." The Acting Director stated that the
Center also established a Zero Tolerance policy for workplace violence
which was posted for employees and students to see.
Regarding claim (4), S2 stated that it is part of every staff member's
job to deal with situations "as they encounter them." S2 further stated
that the shift supervisor is responsible for handling violent/tough cases.
Furthermore, S2 stated that complainant "has voluntarily shown interest
and a willingness to respond to these types of incidents, for example
for a few years [Complainant] took on the collateral duty of running the
Center Security Team and to this day volunteers to oversee the Dining
hall during the evening meal hour."
Further, the record reflects that complainant's first-level supervisor
(S1) stated that complainant had "special skills and interests in dealing
with specific issues." S1 stated that for several years complainant
"would ask to have tough students assigned to his dorm." S1 stated
"sometimes I had to hold him back for fear he would be overextending
himself." Furthermore, S1 stated that he felt that complainant "relished
these difficult duties and they were something he wanted to do."
Regarding claim (5), S2 stated when it came to his attention that AS
distributed religious flyers to the dorms, he counseled AS "about this and
he went and pulled the flyers from the dorms." S2 further stated that
he reported this incident to his supervisor. Further, AS acknowledged
placing religious flyers on the bookshelves in the dorm but S2 "told me
to take them down so I did."
Regarding claim (6), S2 stated that all staff members in the Residential
Living "are expected to hand out over the counter medications to students
and be First Aid and CPR certified." S2 further stated that the staff
was expected to be the first responders in any medical situation, and that
medical concerns are turned over to the Shift Supervisor. Furthermore,
S2 stated that complainant "like other staff" is usually helpful to his
Supervisor when asked for his opinion about a medical situation."
Further, S1 stated that complainant and another Residential Advisor
have more medical background than most of staff members. S1 further
stated that during evening hours, he is frequently called to make medical
judgments. S1 stated that on several occasions, he contacted complainant
and a named Residential Advisor for advice. Furthermore, S1 stated that
"more heads are better than one and I thought I was getting voluntary
input to my decision."
Regarding claim (7), S2 stated that S1 did not recommend complainant for a
Quality Step Increase (QSI) promotion because he did not meet the minimum
qualifications. S2 further stated that in 2000, no Residential Advisors
were given QSI's. Further, S1 stated that he did not offer complainant
a QSI promotion because he did not meet the criteria. Specifically,
S1 stated that the promotion "has to be offered for continuous high
achievement and that the person will continue at that level."
Regarding claim (8), S1 stated that he was unaware of this claim because
complainant's "arrival and departure times have never been a concern."
Further, S2 stated that he had no knowledge of complainant's close
monitoring claim.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, she must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, the Commission finds that the agency
articulated legitimate, non-discriminatory reasons for its employment
actions, as discussed above which we determine were not persuasively
rebutted by complainant. Complainant has not demonstrated that the
agency's articulated reasons for its employment actions were a pretext
for discrimination.
Accordingly, the agency's final decision finding no discrimination was
proper and is AFFIRMED.
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
July 20, 2005
__________________
Date