0120071048
04-16-2009
Lawrence A. Gilbert, Complainant, v. Hilda L. Solis, Secretary, Department of Labor, Agency.
Lawrence A. Gilbert,
Complainant,
v.
Hilda L. Solis,
Secretary,
Department of Labor,
Agency.
Appeal No. 0120071048
Agency Nos. 04-06-008, 04-06-122
DECISION
Complainant filed an appeal with this Commission from the November 13,
2006 agency decision which found no discrimination.
In his consolidated complaints, complainant alleges 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.
Agency No. 04-06-008 (C-1)
Complainant alleged that he was subjected to a hostile work environment
based on his age (56) and disability (anxiety and depression) when
beginning in April 2003, and continuing through August 2003, his
supervisor consistently criticized his work and gave him inaccurate poor
performance feedback and evaluations.
Agency No. 4-06-122 (C-2)
Complainant alleged that the agency discriminated against him on the
bases of age and in reprisal for prior EEO activity when in May 2004,
the agency did not select him for the position of Wage and Hour Compliance
Specialist, Series/Grade GS-0249-13, advertised under vacancy announcement
number DD-04-024.
After the completion of the investigation on the consolidated complaints,
complainant was informed of his right to request a hearing before an EEOC
Administrative Judge or to request the issuance of an agency decision.
When complainant did not request a hearing or an agency decision, the
agency issued a decision pursuant to 29 C.F.R. � 1614.110(b).
The record reveals that complainant was employed by the agency since
1976, and that from 1976 through February 2000, he worked as a Wage and
Hour Investigator. From March 2000 through August 1, 2003, complainant
worked as a grade level GS-13 Assistant District Director, Wage and Hour
Division, Employment Standards Administration (ESA), in the Albuquerque
District Office in New Mexico. From August 2003, complainant was working
as a GS-12 Wage and Hour Investigator, Wage and Hour Division, ESA in
Corpus Christi, Texas.
To prevail in a disparate treatment claim, complainant must satisfy
the three-part evidentiary scheme fashioned by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must
initially establish a prima facie case by demonstrating that complainant
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). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. 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).
The prima facie inquiry may be dispensed with where the agency has
articulated legitimate, nondiscriminatory reasons for its conduct.
See United States Postal Service Board of Governors v. Aikens, 460
U.S. 711, 713-17 (1983).
To establish a claim of harassment, a complainant must show that
(1) complainant is a member of the statutorily protected class; (2)
complainant 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.
See Humphrey v. United States 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. 915.003 (March 8, 1994). Further,
the incidents must have been "sufficiently severe and pervasive to
alter the conditions of complainant's employment and create an abusive
working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75
(1998). In the case of harassment by a supervisor, complainant must
also show that there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
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, supra.
Because 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).
Upon review, the Commission agrees with the agency that it did not subject
complainant to a discriminatorily hostile work environment and that its
nonselection of complainant was not based upon prohibited reasons.
Regarding C-1, the agency recounted the incidents of harassment identified
by complainant. Complainant stated that he was subjected to a hostile
work environment when his supervisor, who was the District Director,
criticized him and treated him with disrespect to the point where he
felt dehumanized. He stated further that his supervisor's tone began
to become confrontational in February 2003, and escalated in April 2003.
Complainant stated that he was constantly criticized about three cases;
told in March 2003, during lunch meetings with his supervisor that she
could not afford any mistakes in the office and questioned whether he
really wanted to be the Assistant District Director. He also stated
that in April 2003, that his supervisor entered his office and slammed
his office door and warned him when she returned from being on leave,
she wanted a memorandum on "the fucking case," (File A), one of the three
cases about which she would criticize him. Complainant stated that his
supervisor gave him a negative mid-year review of failing in April 2003,
although he had previously received a highly effective overall rating in
his annual appraisal issued in October 18, 2002. He further stated that
on his last day of work at the Albuquerque District Office, his supervisor
gave him an interim evaluation with an overall rating of effective and
that all of his individual element ratings met standards, although his
individual element ratings should have been higher. Complainant also
stated that an evaluation of him provided by his peers and subordinates
consisted of very high scores while his supervisor gave him low scores
so that he would be miserable and his success sabotaged at a training
program scheduled in May 2003. He stated that in late May 2003, after
the training, the harassment resumed and his supervisor slammed File
A on his desk again. Complainant stated further that he informed his
supervisor that he would be formally requesting a transfer to the position
of Investigator and that he relocated to Corpus Christi in August 2003,
to avoid his supervisor's attacks. Complainant stated that his anxiety
and depression started from the time he began working in the Albuquerque
District Office.
Regarding disability as a basis in C-1, the agency concluded that
complainant failed to show that he was a qualified individual with a
disability; that he was substantially limited in a major life activity;
that he had a record of a disability; or that he was regarded as
disabled. The agency also found that complainant failed to show a causal
relationship between his supervisor's actions and his age and disability.
Regarding his claim of harassment, the agency concluded after addressing
each alleged incident of harassment, that the conduct of complainant's
supervisor did not rise to the level of harassment because it was not
sufficiently severe or pervasive to create a hostile work environment.
The agency noted that although the District Director criticized
complainant's work performance, the criticism was not hostile or abusive
and supervisors can correct employees for mistakes. The agency also noted
that the supervisor's outburst may have been discourteous, if it occurred,
but that it was an isolated event. The agency found that the supervisor's
criticisms of complainant was based on his work deficiencies and that her
criticisms of complainant were supported by a Wage and Hour Investigator
and a Wage and Hour Compliance Specialist who worked in the office.
Regarding C-2, the nonselection, the agency concluded that complainant had
established a prima facie case of discrimination, noting that complainant
was over the age of 40 and that the Regional Administrator, who had
the authority to approve or reject the Regional Director's selection,
was aware of complainant's EEO activity. The agency also noted that
the preferred candidates were substantially younger than complainant.1
The agency concluded further that it had articulated a legitimate,
nondiscriminatory reason for not selecting complainant and, also, that
complainant had failed to show that the reasons for his nonselection were
pretextual. The agency noted that the Regional Administrator accepted
the recommendations of the panel, consisting of the Regional Director
(who was the Selecting Official) and the Assistant Director from the
Jackson, Mississippi Area office on detail to the Dallas Regional Office
as to which candidate was the most qualified. The agency noted that both
panelists interviewed the candidates on the Certificate of Eligibles,
did not rank complainant as one of the top three candidates, and did not
recommend him to the Regional Administrator. The agency noted that one
panelist stated that complainant tended to ramble during his interview
which the interviewer felt demonstrated a weakness in communications
skills. The same panelist felt that complainant had an unrealistic
idea of what the position would entail and, also, that complainant was
not interested in performing the difficult work of the position but was
more interested in the "fluff" which was a small part of the position.
The panelist further stated that complainant did not understand that most
of his time would be spent on non-agricultural duties and complainant's
familiarity with work at the Regional Office level and other programs
was weaker than his agricultural experience. The agency also noted that
the Regional Director stated that complainant was not selected for the
position because the other candidates demonstrated a better prospective
ability to successfully perform the work, would perform the work more
accurately and in a timelier manner, and evidenced a stronger ability to
multitask and follow instructions. The agency also noted that because
of a prior breach of ethics and protocol by complainant of which the
Regional Director was aware, the Regional Director was reluctant to
promote complainant.
Because the agency had articulated legitimate, nondiscriminatory reasons
for its actions on each of the claims in his complaints, the Commission
need not address whether complainant has established a prima facie case.
Even assuming that complainant has a disability, the Commission finds
that the agency did not discriminate against complainant or create a
discriminatorily hostile work environment on any prohibited basis or
in retaliation. The agency addressed each of the alleged incidents of
harassment at length in its decision. Complainant failed to show by
a preponderance of the evidence that any agency action was taken as
a result of complainant's membership in a protected group. Further,
none of the agency's actions, considered either severally or jointly,
constituted conduct so severe and pervasive so as to have created a
hostile work environment. The record establishes that complainant
was not selected for the position because he was not as qualified
as the candidates recommended and not for any discriminatory reason.
Complainant has not shown that his qualifications were plainly superior
to the chosen candidates. The Commission has recognized that an agency
has broad discretion to set policies and carry out personnel decisions,
and should not be second-guessed by the reviewing authority absent
evidence of unlawful motivation. Complainant has failed to show by
a preponderance of the evidence that any of the agency's actions were
pretextual or motivated by discriminatory animus.
The agency's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (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 (Z1008)
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
April 16, 2009
__________________
Date
1 The record reveals that complainant was found qualified for the position
and he was referred on the Certificate of Eligibles. The record also
shows that two persons were offered the position because the first
person declined. Both candidates were younger than complainant.
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2
0120071048
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120071048