0120113969
08-14-2013
Loyd D. Hines, Complainant, v. Dr. Ernest Moniz, Secretary, Department of Energy, Agency.
Loyd D. Hines,
Complainant,
v.
Dr. Ernest Moniz,
Secretary,
Department of Energy,
Agency.
Appeal No. 0120113969
Agency No. 11-0012-SWPA
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's August 11, 2011 final decision concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant was employed as a Craft Superintendent, GS-13, at the Agency's Southwestern Power Administration (Southwestern) and is stationed in Gore, Oklahoma.
On October 25, 2010, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On December 1, 2010, Complainant filed the instant formal complaint. Therein, Complainant alleged that he was subjected to harassment/a hostile work environment on the basis of age (over 40) when:
1. on August 10, 2010, he was told he would be reassigned as an Inspector under Engineering. Complainant claimed that the position is equivalent to that of a GS-9 position and that it is below his current grade of GS-13;
2. his supervisor telephoned him on September 27 and 30, 2010, and in each telephone call, which lasted 45 minutes, treated him like a six-year old and refused to listen to what Complainant had to say;
3. on October 1, 2010, his supervisor accused him of being "out to get him" and "[played] games" with him; and
4. on October 20, 2010, his supervisor was angry because Complainant submitted a leave request which was approved by someone other than the supervisor.
After the investigation of the claim, 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 August 11, 2011, pursuant to 29 C.F.R. � 1614.110(b).
The Agency dismissed claim 1 on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency also dismissed claim 1 pursuant to 29 C.F.R. � 1614.107(a)(5), on the alternative grounds of mootness and pursuant to 29 C.F.R. � 1614.107(a)(5) for raising a proposed action.
The Agency nevertheless addressed claims 1 - 4 on the merits, finding no discrimination. The Agency found that the evidence of record did not establish that Complainant was subjected to harassment based on age. Moreover, the Agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
Regarding claim 1, Complainant's supervisor stated that Complainant was never told on August 10, 2010, or at any other time, that he was going to be reassigned as an Inspector under Division of Engineering and Planning. Specifically, the supervisor stated that he and Complainant's second level supervisor met with Complainant "to discuss that due to the present work load we had in the Division of Engineering and Planning with respect to Communication Towers' relocation and installation, they were short on Inspectors. We asked [Complainant] if he wanted to voluntarily consider moving on a temporary basis as an Inspector with his same grade and pay and he would keep his government vehicle but would be under the supervision of [Director, Division of Engineering and Planning (Director)]. The only change would be that he would not perform the duties of his present job."
Further, the supervisor stated that Complainant told him and the second-level supervisor that if that is what the Agency wanted him to do, he did not have an issue with it. The supervisor stated that he and the second-level supervisor repeatedly asked Complainant "if he was sure, and [Complainant] said that he was, and that he did not have any problem with this temporary assignment. Once he agreed, we told him that we needed to talk to [Director]. [Complainant] was never told that he would be demoted."
The supervisor stated that approximately one day after the August 10, 2010 meeting referenced above, the second-level supervisor informed him that Complainant complained to the Division of Human Resources Management and "that everything pertaining to the temporary assignment previously discussed with [Complainant] was stopped. The meeting with [Complainant] was never about reassigning him from his present position without his consent. We never told him that he would be reassigned - it was never said - we asked him if he wanted to voluntarily consider moving on a temporary basis as an Inspector with his same grade and pay and he would keep his government vehicle but would be under the supervision of [Director]."
The second-level supervisor stated that he and the supervisor told Complainant "that we were not going to force him to take the position, but if he willingly accepted, it would be helpful to the agency. I do not know if he would lose his supervisory responsibilities - we hadn't gotten that far. However, we did tell him that the other Superintendents would supervise the right-of-way crew (his responsibility) until the assignment was complete. [Complainant] responded that he would do whatever the agency would like and at that point, the meeting ended. He did not complain or voice any concerns at that time. At no time did we discuss the presumption that he would be anything other than his GS-13 level. There was no discussion about his retirement and age and I do not believe that there is a campaign to get rid of any employee (young or old) unless there is a performance issue."
Regarding claim 2, the record reflects that Complainant flies in a helicopter every six months as part of his job, and the helicopter has a system to connect cell phones to the headphones in the helicopter. Complainant's phone was not compatible with the system. Complainant alleged that his supervisor was aware of the problem but did not respond when the problem was raised. Complainant stated that he contacted the IT Department and Area Office but they were unable to assist him. Complainant stated that he then went to Walmart and found a phone which cost $96.00 and bought it with his government issued credit card. The record reflects that Complainant informed IT Department about the purchase and presumed that the IT Department informed his supervisor.
Further, Complainant stated that he was in a truck when the supervisor called him. Complainant stated that the supervisor was "very mad" about the telephone he had purchased on his own. Complainant stated that he returned the telephone because the supervisor said he would not pay for it.
The supervisor denied Complainant's allegations. Specifically, the supervisor stated that during the relevant period Complainant violated the Agency's telephone procedures. The supervisor stated that on October 1, 2010, he sent Complainant an email outlining their September 27 and 30, 2010 conversations and "at no time did I yell at him or treat him like he was a child. I simply told him that he violated the policy; I was disappointed but not upset. I never told him to return the phone or that I would not pay for it."
Regarding claim 3, the supervisor denied telling Complainant "that I am out to get him. Instead, I do recall talking to [Complainant] about what he had told me about ten years ago, when I was a Project Manager, pertaining to a book that he maintained with information on [a named employee] about what he has done and what he has not done. I told [Complainant] that I was not playing games with him or anybody else. I told [Complainant] that under my supervision everybody will be treated with honesty, respect and fairness."
Regarding claim 4, the supervisor denied being angry at Complainant because he had submitted a leave request which was approved by someone else other than him. Specifically, the supervisor stated "I never expressed anger to [Complainant] since I never had the opportunity to talk to him. He was assigned to do some work and I told him that until the work was completed, I would not approve his time off. I was busy all during the day and when I checked my emails, I noticed that [Complainant] sent me an email close to 4 p.m. on October 19, 2010. He said that he finished the assignments and added a p.s., asking me if I was going to sign his annual leave for October 20 and 21, 2010."
Further, the supervisor stated that he returned to his office late that afternoon and checked his voice messages. The supervisor stated that one of his superintendents from the Jonesboro Maintenance Office left a message asking him to call back. The supervisor stated that he called the superintendent and during their conversation he noticed on his computer screen that Complainant "submitted his annual leave request for approval and then 10 minutes later it showed that I had received an annual leave request recall from [Complainant]. As I'm talking to [superintendent], I told him that I needed to call [Complainant] because he asked for annual leave and then recalled his annual leave request. [Superintendent] said 'oh yeah, he submitted it to me and I approved.' I told [superintendent] that he was not [an acting supervisor] and that I was not leaving until the next day. Normally when I'm out I'll send an email stating who will be acting while I'm gone. [Superintendent] apologized and said he didn't know that I was in."
The supervisor stated that he went to look for Complainant but he was already gone for the day. The supervisor stated that he then called his assistant and asked if Complainant was in and that he needed to speak to him and "if she saw [Complainant] to have him call me. She said 'what's wrong, you sound upset ?' - I started telling her that [Complainant] waited to get his leave approved by...and then just said, I'll wait to talk to him and that she didn't need to get involved. I did not yell nor tell her that I was angry that he left without my permission."
Furthermore, the supervisor stated that he felt that Complainant "went around me to get his leave approved. I went and talked to the EEO manager and the HR to see if this was an EEO issue or a conduct issue; they advised that it was a conduct issue. I started to write an email requesting the proper information to write up [Complainant] for bad conduct but I decided to think about it some more...I never called [Complainant] or had a discussion with him about his annual leave request issue. I do not recall the date, but [assistant] called me and told me that she saw [Complainant] and told him that I was upset and she hoped she didn't do anything wrong. I told her that everything was fine. I did not chew anyone out - this is business and I always treat my employees with honesty, respect and fairness - - I told [assistant] that [Complainant went around me to get his annual leave request approved and not to act for me unless he receives an email that I'm out of the office."
Complainant did not make any new contentions on appeal. In response to Complainant's appeal, the Agency argues that Complainant's appeal should be dismissed because Complainant failed to simultaneously serve a copy of his appeal upon the Agency. Second, the Agency asserts that the reasons for finding no harassment set forth in its decision are proper.
The instant appeal followed.
ANALYSIS AND FINDINGS
As an initial matter, we note that Complainant did not serve a copy of his appeal on the Agency. However, our decision regarding this appeal is based on observations readily obtainable through a review of the formal complaint and does not rely specifically or solely on anything included in Complainant's appeal.
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, for the same reasons already articulated above, we conclude that the evidence does not establish that the incidents alleged by Complainant occurred because of his age.
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.1
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
August 14, 2013
__________________
Date
1 Because we affirm the Agency's finding of no discrimination concerning claim 1 for the reason stated herein, we find it unnecessary to address alternative dismissal grounds (i.e. untimely EEO Counselor contact, mootness and for raising a proposed action).
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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