0120082088
09-02-2008
John G. Baumgarten, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
John G. Baumgarten,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120082088
Agency No. 074044200758
DECISION
On April 1, 2008, complainant filed an appeal from the agency's February
27, 2008 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. The appeal is deemed timely and is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission affirms
the agency's final decision.
On February 9, 2007, complainant contacted an EEO Counselor and filed a
formal complaint on March 27, 2007. The record indicates that complainant
filed amendments to his initial complaint on May 24, 2007, June 6, 2007
and September 12, 2007. In his complaint, complainant alleged that he
had been subjected to a pattern of non-sexual harassment by his supervisor
on the bases of sex (male) and in reprisal for prior protected activity.
Specific examples provided in support of his claim are:
1. On February 9, 2007, he was placed on administrative leave until
February 20, 2007;
2. On February 9, 2007, he was given a direct referral to the
Civilian Employee Assistance Program (CEAP);
3. On December 26, 2006, complainant's supervisor placed a GS-4
employee as complainant's acting supervisor in her absence;
4. On at least two occasions in August 2006 and November 2006, his
supervisor had complainant's name removed from the email distribution
list of another command;
5. On August 22, 2006, complainant's supervisor removed his
permissions from a critical application tool;
6. Since August 18, 2006, complainant's Individual Development Plan
(IDP) for training has not been funded;
Complainant further alleged the following:
1. On March 9, 2007, he was issued a Notice of Proposed Suspension
for five calendar days.
2. During the week of February 11, 2007, complainant alleges that
his supervisor solicited negative comments about him from his female
co-workers, which led to complainant receiving the "silent treatment"
from his co-workers;
3. His request for sick leave for the period of February 20-22,
2007 was denied and he was charged Absent Without Leave (AWOL);
Complainant also alleged that he was subjected to reprisal and sex
discrimination when he was issued a Decision on Notice of Proposed
Suspension effective April 30, 2007. In addition, complainant alleges
that the agency further discriminated against him when his supervisor
failed to submit the proper paperwork to return him to duty following
his suspension. Finally, complainant alleges that he was subjected to
discrimination when his supervisor questioned him about an email he sent
on July 2, 2007 requesting a change to a military member's rank in the
agency's Global Address Listing (GAL) and when he was advised on August
21, 2007 that this email had been put in his file.
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, or alternatively, to receive
a final decision by the agency. Complainant requested a FAD. In its FAD,
the agency found that complainant was not subjected to discrimination
as alleged. The agency determined that even assuming arguendo,
that complainant established a prima facie case of sex or reprisal
discrimination, the agency proffered legitimate non-discriminatory reasons
for its actions, and complainant failed to demonstrate that the agency's
reasons were a pretext for discrimination. As to harassment, the agency
determined that complainant failed to show that the alleged incidents
were severe or pervasive or that they were related to complainant's sex
or were taken in reprisal for his prior protected activity.
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, 1358 (11th Cir. 1982). Whether the
harassment is sufficiently severe to trigger a violation of Title VII
[and the Rehabilitation Act] 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. Harris v. Forklift Systems, 510 U.S. 17
(1993).
Complainant alleges that he was subjected to a pattern of workplace
harassment. To establish a prima facie case of hostile work environment
harassment, complainant must show that: (1) he is a member of a
statutorily protected class; (2) he was 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. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11.
To prevail in a disparate treatment claim such as this, complainant
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, 120 S.Ct. 2097 (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).
In its final decision, the agency articulated legitimate
non-discriminatory reasons for its conduct.
Administrative Leave and CEAP Referral
The agency indicates that complainant was placed on Administrative
Leave from February 9, 2007 to February 20, 2007 and referred to CEAP in
response to a recommendation from the agency's human resources department.
In its final decision, the agency states that complainant had difficulty
following procedures and getting along with his co-workers. At the
time of the administrative leave, complainant's supervisor indicates
that complainant's behavior and his relationship with other employees
prevented work from being completed.
Designating a GS-4 as acting supervisor
Complainant alleges that instead of selecting him to be acting supervisor
in his supervisor's absence, she designated a GS-4 employee to serve in
this capacity on December 26, 2006. The record contains no evidence
to support this claim. Complainant alleges that his supervisor made
the announcement during a staff meeting and followed up with an email.
However, complainant has failed to present the email in question.
In fact, the GS-4 employee herself states that while she was asked by
complainant's supervisor to attend a daily staff meeting in her absence,
she was never designated as acting supervisor on December 26, 2006 or
any other day.
Name removed from the email distribution list
The agency states that in August and November 2006, complainant's
supervisor had complainant's name removed from the email distribution
list maintained in other commands because complainant was not
involved in the scope of work performed by the commands in question.
Complainant's supervisor indicated that she wanted to keep complainant
focused on his duties rather than on tasks that were not within his area
of responsibility.
Permissions removed from an application tool
The record indicates that agency employees routinely have the ability
to request that particular items be added to his or her computer by
accessing a Move, Add or Change (MAC) application tool. The tool
required users to submit requests to a named employee for review who
would then see that the request was approved and the action taken.
The record indicates that complainant submitted a MAC request to add a
particular piece of software to his computer and was advised that his
computer already possessed the software and that he should not proceed
with the MAC request. Complainant disregarded this guidance and submitted
his MAC request nonetheless. Complainant's permission was removed from
this application tool following this incident. The agency states that
complainant's permissions were removed because of his failure to follow
instructions or comply with established agency policies and not because of
his sex, or in reprisal for EEO activity. The agency indicates further
that another female employee similarly had her permissions removed from
the MAC application tool.
IDP not funded
The agency indicates that complainant's claim with respect to his IDP
is without basis. The agency states that when complainant's IDP was
approved, adequate funds were available for the courses complainant
listed. In addition, the agency states that IDP's are used to make sure
that adequate funds are available for complainant's entire department at
the time they are submitted. If necessary, IDP courses are adjusted.
When the time for a particular course approaches, employees submit a
training request to the supervisor for approval. The record indicates
that in December 2006 complainant asked to reschedule classes slated for
January through March to the April through June timeframe. Complainant's
requests for training were approved in March 2007.
Proposal to Suspend and Decision on Notice of Proposed Suspension
Complainant alleges that the agency's Notice of Proposed 5-day suspension
and the Notice of Suspension were issued in reprisal for his filing an
EEO complaint. The record indicates that the disciplinary action was
taken by the agency because complainant used inappropriate language
in conflicts with co-workers and refused to follow office procedures.
Complainant admits that he used curse words on several occasions but
asserts that any infractions were minor at best. The record indicates
that the proposal to suspend and the decision to suspend were taken after
a series of incidents in which complainant engaged in unprofessional
conduct and was not taken in reprisal for his EEO activity.
Soliciting Negative Comments from co-workers
The record indicates that complainant has presented no evidence that
his supervisor solicited negative comments about him from his female
co-workers. Complainant's supervisor testified that female co-workers
complained about complainant and how difficult he was to work with
and she advised them to document particular incidents and to put their
concerns in writing. Although complainant alleges that he was ignored
by his female co-workers, he acknowledges that they responded to him
professionally in the course of performing their duties.
Denial of sick leave and AWOL
The record indicates that in November 2006, complainant was absent from
work from the 20th through the end of the month, but failed to contact his
supervisor to request leave. As a result of this incident complainant
was placed on a Letter of Requirement on December 4, 2006 requiring
complainant to provide a doctor's note and other medical documentation
for any absence due to illness or injury. Thereafter, complainant failed
to return to work on February 20 and 22, 2007 following the end of his
administrative leave. Complainant stated that he was ill and returned
to work on March 5, 2007 without medical documentation for his absence
on February 20 and 22. Complainant provided medical documentation days
later on March 8, 2007 to support his absence. Complainant's supervisor
denied his leave request based on his failure to comply with the December
4, 2007 Letter of Requirement.
Failure to return complainant to pay-status following the end of his
suspension
Following his suspension from April 30, 2007 to May 4, 2007, complainant
returned to work. However, on the next scheduled payday; June 1,
2007, complainant failed to receive his pay. Complainant asserts
that his supervisor intentionally retaliated against him by failing to
submit the proper paperwork to return him to pay-status. The record
indicates that complainant's supervisor did not have the responsibility
to generate the paper work to return complainant to pay status. Rather,
the responsibility rested with the agency's human resources office which
prepares the paperwork in such circumstances. The record indicates
that complainant's supervisors assisted complainant in correcting the
error once they learned that complainant had not been paid. The agency
asserts that while an error did occur with complainant's pay following
his suspension, it was not the result of his supervisor failing to act.
In fact, the record indicates that an action to return complainant to
pay-status was documented in the file and dated May 22, 2007.
Email requesting change to military rank in Global Address Listing
The record indicates that on July 2, 2007, complainant submitted a MAC
request to change the rank of an agency employee in the agency's Global
Address Listing. The following day, complainant received an email from
the individual responsible for making the change advising him that
the change had been made. However, complainant believed that it was
incorrect and resubmitted the request. The record further indicates
that when the responsible agency employee learned that complainant had
submitted a second request she questioned complainant; he became angry
and an argument between the two ensued. The agency employee reported to
complainant's supervisor that complainant's behavior created a hostile
work environment. When complainant's supervisor learned of the incident,
she questioned complainant in a conversation which complainant admits
lasted only five minutes. Complainant testified that his supervisor's
tone was calm and that she expressed concern over the incident. However,
complainant spoke to his second line supervisor about the incident
and alleges that he was told that the email was placed in his "file."
The agency states that no such disciplinary file exists and that the
email in question was not placed in a file of any sort.
Upon review of the record, the Commission finds that the agency has
articulated legitimate non-discriminatory reasons for its actions.
The Commission finds further that complainant failed to present evidence
that more likely than not, the agency's articulated reasons for its
actions were a pretext for discrimination. Complainant fails to provide
evidence that the agency's conduct was based on any discriminatory animus
toward complainant's sex or in reprisal for his EEO activity.
Finally, as to harassment, we find that complainant has not demonstrated
that the agency's conduct was so severe or pervasive that it altered
the conditions of complainant's employment.
Accordingly, based on a careful review of the record, including arguments
and evidence not specifically addressed in this decision, the agency's
final order is hereby affirmed for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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 (Z0408)
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
September 2, 2008
__________________
Date
2
0120082088
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
8
0120082088