James S. Morrin, Complainant,v.Kathleen Sebelius, Secretary, Department of Health and Human Services (Indian Health Service), Agency.

Equal Employment Opportunity CommissionDec 18, 2012
0120123025 (E.E.O.C. Dec. 18, 2012)

0120123025

12-18-2012

James S. Morrin, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services (Indian Health Service), Agency.


James S. Morrin,

Complainant,

v.

Kathleen Sebelius,

Secretary,

Department of Health and Human Services

(Indian Health Service),

Agency.

Appeal No. 0120123025

Agency No. HHS-IHS-0007-2012

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's June 13, 2012 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.

BACKGROUND

On August 2, 2011, Complainant was hired as a General Supply Specialist, GS-2001-09, at the Agency's White Earth Health Center in Ogema, Minnesota, subject to a two-year probationary period.

On November 18, 2011, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the bases of national origin (Red Cliff Band of Chippewa Indians) and sex (male) when:

1. Beginning August 11, 2011, he was subjected to hostile behavior by the Supply Technician, who he was supposed to eventually supervise. When Complainant brought the hostile behavior to the attention of the former Chief Operating Officer, no action was taken. However, one female employee who witnessed the Supply Technician's hostile behavior was asked if she wanted to work from home and another female employee was asked if she wanted to work with her door locked.

2. On September 28, 2011, he was terminated from his General Supply Specialist position during his probationary period.

After the investigation of the claims, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision on June 13, 2012, pursuant to 29 C.F.R. � 1614.110(b).

The Agency found no discrimination. The Agency found that Complainant failed to establish a prima facie case of national origin and sex discrimination. The Agency nevertheless found that Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext.

Regarding the harassment claim, the Agency found that the evidence of record did not establish that Complainant was subjected to harassment based on national origin and sex. Specifically, the Agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.

Regarding claim 1, the former Chief Operating Officer (Officer) stated that during the relevant time Complainant did not supervise the Supply Technician because he was new to the Agency and did not know many of the processes and needed to undergo training for supervisors. The Officer further stated that Complainant was scheduled for training but it was cancelled and rescheduled. The Officer stated that Complainant did not attend the rescheduled training because he was terminated before the training took place.

The Officer stated from the time Complainant started working for the Agency, there were personality conflicts between him and Supply Technician and they did not get along. Specifically, the Officer stated that Complainant and the Supply Technician "accused the other of being hostile. I met with each separately to find out what the problems were. I laid out my expectations for them and the department, of which, they would have to work together. [Supply Technician] said he would try. Complainant said, NO, that [Supply Technician] needed to be fired. I asked why and [Complainant] stated that [Supply Technician] was doing illegal things. He gave me 5 or 6 allegations. I investigated each one and found them to be baseless and untrue [emphasis in its original]."

Further, the Officer stated that there was one incident that occurred on August 19, 2011 when Complainant backed the Supply Technician into his office and "commenced to scream at him. [Supply Technician] repeatedly asked [Complainant] to leave. Security had to be called to have [Complainant] removed from [Supply Technician's] office. This altercation was documented by several staff." The Officer stated that following an investigation, he felt that Complainant was the aggressor in the incident. The Officer stated that Complainant unsuccessfully attempted to get a restraining order against the Supply Technician, the Supply Technician filed an EEO complaint alleging that he was subjected to a hostile work environment by Complainant.

With respect to Complainant's allegation that one female employee requested to work from home because of the Supply Technician and another female employee kept her office door locked because of the Supply Technician's behavior, the Officer denied it. Specifically, the Officer stated "no employee male or female came to me to request to work at home or keep door locked because of [Supply Technician]."

Regarding claim 2, the Officer stated that Complainant was terminated during his probationary period because he failed to follow instructions and was not a good fit. Specifically, the Officer stated that Complainant "was not a good fit. Along with his failure to follow instructions, he was also viewed by staff sleeping during his work hours. He was also viewed shredding a cast amount of documentation without my knowledge. [Complainant] was also telling stuff he was [carrying] a box cutter around as a weapon. For all these reasons I made the decision to terminate him during his probationary period." Furthermore, the Officer stated that he did not discriminate against Complainant based on his national origin and sex.

The instant appeal followed.

ANALYSIS AND FINDINGS

Disparate Treatment

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, he must first establish a prima facie 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).

In the instant case, we find that Agency management articulated legitimate, nondiscriminatory reasons for its actions, as detailed above. Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.

Hostile Work Environment

Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). It is also well-settled that harassment based on an individual's prior EEO activity is actionable. Roberts v. Department of Transportation, EEOC Appeal No. 05970727 (September 15, 2000). A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all of 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. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. The harassers' 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 the record does not support a finding that Complainant was subjected to any Agency action that rose to the level of a hostile work environment. Moreover, the evidence does not establish that the incidents alleged by Complainant occurred because of his national origin and sex.

Complainant, on appeal, argued that the Agency incorrectly interpret his claims which resulted in a flawed analysis and conclusion, and that the investigation was "flawed, which resulted in an incomplete body of evidence that when rebutted, the trier of fact concluded that unlawful discrimination did not occur." We note Complainant's extensive arguments on appeal, which include but are not limited to purported deficiencies in the investigation, the Agency's purported determination relying upon evidence not of record; and the Agency's purported failure to review the evidence in the light most favorable to Complainant. We have reviewed Complainant's appellate arguments but nonetheless determine that the Agency properly conducted an adequate investigation of the instant complaint. We further determine that Complainant has provided no persuasive arguments indicating any improprieties in the Agency's findings. Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.

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 18, 2012

__________________

Date

2

0120123025

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120123025

7

0120123025