01976140
12-02-1999
Louis M. Sparks, Complainant, v. William M. Daley, Secretary, Department of Commerce, Agency.
Louis M. Sparks v. Department of Commerce
01976140
December 2, 1999
Louis M. Sparks, )
Complainant, )
) Appeal No. 01976140
v. ) Agency No. 94-54-0125
William M. Daley, ) Hearing No. 150-95-8176X
Secretary, )
Department of Commerce, )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination
on the bases of reprisal (prior EEO activity), and age (DOB 10/13/48),
in violation of Title VII of the Civil Rights Act of 1964, 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.<1> Complainant alleges
he was discriminated against when: (1) he was placed on a Performance
Improvement Plan (PIP) on October 15, 1993; (2) he was not selected to
be the Acting Meteorologist-in-Charge (MIC) on two occasions in 1993;
and (3) the agency created a hostile working environment when it did
not choose either him or a coworker to be Acting MIC.<2> The appeal is
accepted in accordance with EEOC Order No. 960.001. For the following
reasons, the Commission AFFIRMS the FAD.
The record reveals that during the relevant time, complainant was
employed as a GS-12 Meteorologist, at the agency's Central Weather
Service Unit facility in Miami, Florida. Complainant claims that after
he participated as a representative in a coworker's grievance,<3> his
supervisor (S1) created a hostile work environment. In addition to the
above claims, complainant alleged that S1 threatened to take action
against him for filing complaints, videotaped his weather briefings,
required him to disseminate weather information to the FAA on an hourly
basis, monitored his performance and required him to substantiate his
sick leave. Believing he was a victim of discrimination, complainant
sought EEO counseling and, subsequently, filed a complaint on January 5,
1994. At the conclusion of the investigation, complainant requested a
hearing before an Administrative Judge (AJ), who issued a Recommended
Decision(RD), finding no discrimination. The agency's adopted the RD.
The RD concluded that complainant established prima facie cases of age
discrimination and reprisal when he demonstrated that similarly situated
employees not in his protected classes were treated differently than him
under similar circumstances. Notwithstanding, the RD found that the agency
had articulated legitimate nondiscriminatory reasons for its actions,
namely, complainant was placed on a PIP because of poor performance,
failure to follow instructions and poor client relationship with the
FAA. The RD held that complainant was not allowed to act because of his
poor relationship with customers and because he previously exceeded his
authority while Acting as MIC. Further, the RD held that the incident's
that complainant alleged as creating a hostile work environment were not
severe or pervasive enough to constitute a hostile work environment. On
appeal, complainant contends that the agency failed to interview one
of his witnesses and failed to adequately investigate his complaint.
The agency requests that we affirm its FAD.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. The Commission agrees that complainant
established a prima facie case of reprisal and age discrimination but
also finds that the agency articulated legitimate nondiscriminatory
reasons for its actions. In reaching this conclusion, we note that with
regard to the PIP, the agency had documented complainant's performance
problems and poor relationship with the FAA prior to complainant ever
filing an EEO complaint or participating in the EEO process. In addition,
we do not find that age was considered with regard to placing complainant
on a PIP. With regard to complainant not being allowed to act, again
we agree that neither complainant's age or prior EEO activity were
considered. We find that complainant was not allowed to Act because
previously while Acting he exceeded his authority by issuing a memorandum
that was critical of the FAA. He was also not allowed to Act because he
had a poor relationship with the FAA.
With regard to complainant's claim of a hostile work environment,
we find that 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. Jackson
v. United States Postal Service, EEOC Appeal No. 01972555 (April 15,
1999). In determining whether a working environment is hostile, factors
to consider are the frequency of the alleged discriminatory conduct, its
severity, whether it is physically threatening or humiliating, and if it
unreasonably interferes with an employee's work performance. See Harris
v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); EEOC Notice No. 915.002
(March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems,
Inc. at 3, 6. The Supreme Court stated: "Conduct that is not severe
or pervasive enough to create an objectively hostile work environment -
an environment that a reasonable person would find hostile or abusive -
is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993). After
a careful review of the record, we find that complainant failed to
demonstrate that he was subjected to a hostile work environment. We
find the incidents raised by complainant are performance improvement
measures and are not severe or pervasive enough to create a hostile work
environment. See Harris, supra.
Therefore, after a careful review of the record, we discern no basis
to disturb the AJ's finding of no discrimination which was based on a
detailed assessment of the record and the credibility of the witnesses.
See White v. USPS, EEOC Request No. 01973741 (May 13, 1999). Therefore,
we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
December 2, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________ __________________________
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2 Complainant was given notice that he did not have standing to assert
a claim on behalf of his coworker.
3 Complainant raised many examples of a hostile work environment. Some
of the examples however, where raised in an earlier complaint and some
of the incidents occurred prior to the first complaint. As such, those
examples will be used as background information.