0120051354
02-05-2007
Mark G. Eastman, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, (U.S. Army Corps of Engineers), Agency.
Mark G. Eastman,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
(U.S. Army Corps of Engineers),
Agency.
Appeal No. 01200513541
Agency No. AVHGFO007A0040
Hearing No. 380-2001-08204X
DECISION
Complainant timely initiated an appeal from the agency's final action
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., 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. The appeal is accepted
pursuant to 29 C.F.R. � 1614.405(a).
Complainant, a former Park Ranger, GS-0025-09, at the agency's Walla
Walla District, Operations Division, Eastern Project, Little Goose
Dam in Dayton, Washington, filed a formal EEO complaint on May 30,
2000. 2 Therein, complainant claimed that he was a victim of unlawful
employment discrimination on the bases of disability (post traumatic
stress disorder), age (D.O.B. 05/01/48), and in reprisal for prior
protected EEO activity when:
1. on May 23, 1999, a younger co-worker was asked if he was interested
in complainant's job;
2. between July and December 1999, complainant was subjected to a hostile
work environment when the agency did not schedule him for two consecutive
days off; delayed approval of his annual leave; asking him to report for
duty in its Clarkston facility; and requiring him to attend training;
3. on November 5, 1999, he was not reassigned to a Park Ranger position
at Lower Granite Dam, which was closer to his home, and in March 2000,
he was not provided the opportunity to compete for the same position; and
4. on November 30, 1999, he was given a low performance evaluation and
placed on a Performance Improvement Plan (PIP).
The record reflects that in 1968, complainant was diagnosed with post
traumatic stress disorder (PTSD) associated with a combat injury while
serving in Vietnam, but kept this condition a secret from the agency
as long as possible. Complainant asserted that PTSD affected the
performance of tasks because of thought intrusion, distraction, and
an inability to concentrate. In July 1999, complainant began taking
medication and underwent counseling for this condition. Complainant
further claimed that PTSD limited his ability to work effectively,
because he was devoting his time in attempts to second guess what other
persons were doing. The record reflects that management finally became
aware of complainant having PTSD in November 1999; and that the sole
accommodations complainant requested were: (a) a transfer to the Lower
Granite Dam and (b) two consecutive off days.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The agency thereafter filed a motion to
dismiss or in the alternative, a Motion for Summary Judgment.
In its motion, the agency requested the AJ to dismiss complainant's
complaint on the grounds of mootness because he subsequently retired
from agency employment and therefore an accommodation would no longer
be either possible or necessary. The AJ dismissed the agency's motion.
The AJ determined that because there was a possibility of compensatory
damages for violation of the Rehabilitation Act, complainant's formal
EEO complaint had not been rendered moot.
On June 23, 2005, the AJ issued a decision without a hearing finding no
discrimination. The AJ found that complainant did not establish a prima
facie case of age discrimination. In his analysis of age discrimination,
the AJ focuses on claim (1) (in May 1999, a younger worker was asked
if he was interested in complainant's job). The AJ determined that
this matter constituted neither a personnel action nor an adverse
employment action; and that it did not affect the terms, conditions,
or privileges of complainant's employment. The agency concluded that
"age can be dismissed as a basis in this case."
Regarding the basis of disability, the AJ determined that, based on
complainant's description of his problems with cognitive thinking that
he was no longer capable of performing the essential functions of his
Park Ranger position, and that he therefore did not show that he was a
"qualified" individual with a disability. Moreover, the AJ found that
the agency acted in good faith by attempting to accommodate complainant,
through reassigning him to the agency district headquarters in Clarkston,
and by offering complainant several other positions, but that complainant
declined all three reassignment offers made by the agency. The AJ
noted that complainant declined the offers because the offered positions
were either farther away from his family or closer to his first-level
supervisor.
Regarding the basis of reprisal, the AJ found no nexus between the alleged
adverse actions and prior protected activity. The AJ further found
that the agency articulated legitimate and nondiscriminatory reasons
for its actions. Furthermore, the AJ found that complainant failed to
present any evidence which demonstrated the agency's articulated reasons
for its actions were a pretext for discrimination.
As to complainant's harassment claim, the AJ concluded that complainant
failed to prove that he was subjected to harassment sufficiently severe
or pervasive so as to render his work environment hostile.
The agency issued a final action on October 12, 2004, implementing the
AJ's decision finding no discrimination.
Regarding claim 1, the record reflects that complainant's former
first-level supervisor (S1) stated that the identified co-worker was
never offered complainant's position at Little Goose. S1 further stated
that management talked to the identified co-worker to "see if he was
interested in the positions, but nothing ever materialized for him to
come to work for us, and there certainly was no age issue involved."
Regarding claim 2, S1 stated that she did not subject complainant to a
hostile work environment. With respect to complainant's claim that he
was not scheduled two consecutive days off, S1 stated that as a routine,
management attempt to give Park Rangers, including complainant, two
consecutive days off. S1 stated that Park Rangers have Saturday and
Sunday off during the winter season, but work on the weekends during the
summer season. S1 stated there is only one day off at the beginning
of the recreation season and at the end of the recreation season for
all Park Rangers, and "then periodically throughout the year if an
individual goes on training, again maybe the training class is Monday
through Friday so you might have to adjust days off so there would be
an instance possible where there'd be one day off."
With respect to complainant's claim that his annual leave requests were
delayed and denied, S1 denied this occurred, stating she approved all
of complainant's leave requests, and that whenever he requested leave
"I got a response back right away."
With respect to complainant's claim that he was instructed to report for
duty in Clarkston, S1 stated that management only instructed complainant
to report for duty in Clarkston when it was "advantageous" to him.
Specifically, S1 stated that if complainant was at home on a weekend and
"we had a meeting going on that Monday, we'd say, 'just report to work
in Clarkston rather than having him drive all the way down to Little
Goose,' get in the government vehicle, and drive back to Clarkston.
That way he could spend Sunday night at home with his family."
The record further reflects that the Lead Ranger (LR) stated that
he was directed to have complainant report for duty in Clarkston on
"some occasions." LR stated that he wanted complainant to attend several
safety meetings in Clarkston. Specifically, LR stated that he was "at a
one-man station myself and you can feel like you're out there on a limb
on your own, and you need to come back in to the main office once in a
while to see how things operate." LR stated that management noted that
complainant had "some administrative shortcomings for a GS 9 ranger,
and I was told that we would try to train him up, so during the summer,
we did ask him to report to Clarkston, and as I understood it, it was a
shorter drive from his home to Clarkston than it was to [his usual work
station]..."
With respect to complainant's claim that he was required to attend
training, S1 stated that all Park Rangers, including complainant, are
required to attend training "as part of their job, training to help
them to do their job better, training to help them be safe when they're
dealing with the public." S1 stated that all Park Rangers "have to
take required training every year, first aid training, CPR training,
personal protective training, blood-born passage, and there's a variety
of classes that all park rangers have to take every year." The record
further reflects that LR stated that he felt that complainant needed
"another month or two" of training at the Clarkston facility.
Regarding claim 3, S1 stated that she first learned of complainant's
disability in November 1999 when he requested to be reassigned to Lower
Granite Dam and two consecutive days off as part of his reasonable
accommodation request. S1 further stated that on November 5, 1999,
complainant was not reassigned to a Park Ranger position at Lower Granite
Dam because there was no opening. Moreover, even if there had been an
opening at the Lower Granite Dam, S1 stated that during the relevant
time, complainant was having some difficulties performing successfully
in his job at Little Goose. S1 stated that the job at Lower Granite Dam
"is a bit more stressful position. It's in the public eye a lot more."
S1 stated that the Lower Granite Dam position "required a lot more of the
park ranger, and quite frankly, I didn't want to put him in that position
because he was having difficulties in the position he was currently in."
Further, S1 stated that she and management officials tried to accommodate
complainant "as best we can." S1 stated that in January 2000, management
offered complainant a Park Ranger GS-9 position in Clarkston which was
closer to his house but he declined the offer. Specifically, S1 stated
that the Clarkston offer "would be considerably closer to his house
and was in a reasonable commuting area, and he declined that position,
so that was one position that was vacant and open to him, so that was
an accommodation we tried to make and was declined."
With respect to complainant's claim that in March 2000 he was not provided
the opportunity to compete for a seasonal 10-month Park Ranger position
at Lower Granite Dam, the record reflects that a series of administrative
errors with a new computerized application system, RESUMIX, resulted
in complainant's name not appearing on the referral list. The record
further reflects that S1 stated that even if complainant had been on
the referral list he would not have been selected based on his work
performance problems.
Regarding claim 4, S1 stated that complainant was not discriminated
against when he was given a low performance evaluation and put on a PIP
because "he'd been counseled ahead of time before any EEO complaints
to my knowledge got filed." S1 further stated that complainant was
counseled concerning his performance and was given "some suggestions
and some guidance of things to work on to improve his performance,
and there'd been performance issues in the past that were still kind
of lingering." The record contains a copy of complainant's November 30,
1999 PIP. Therein, S1 informed complainant that based on his performance
appraisal for the rating period of November 1, 1998 to October 31, 1999,
he was being placed on a PIP. S1 instructed complainant that during the
rating period of December 7, 1999 to May 31, 2000, he was to discuss his
work assignments and accomplishments with his supervisor at least twice
a week. S1 also instructed complainant that he would receive one on one
training in the following areas: computer training; completing CMOIRS
and specific incidents reports; revise LECA agreements and conduct an
orientation session with officers; how to write work requests in Access
database; and how to complete his timesheet.10
Further, S1 stated that with respect to the November 1, 1999 to May 31,
2000 rating period, she gave complainant an overall score of 4 (fair).
S1 stated that in regard to complainant's performance, there were
"routinely problems with getting the right cost accounts in there, putting
the right blocks of time in the right accounts, claiming differential
when that was due him." S1 stated that complainant was asked to attend
at least one safety meeting per month but there were "where he just would
forget so I'd have to remind him." S1 stated that after safety inspections
of recreation areas, complainant found some areas that needed to be worked
on, he was supposed to do a work request "to trigger the maintenance
crew to go out and repair it, and those weren't done." S1 stated that
complainant's team leader had to take care of the work request forms.
S1 stated that another area complainant needed to improve on was writing
contract letters. Specifically, S1 stated that the agency has a grounds
maintenance contract that complainant "periodically went out and inspected
the work the contractor was doing, and we met with that contractor on
a monthly basis, and one of [Complainant's] responsibilities was to
attend the meeting and write up a letter about basically the notes of
the meeting." S1 stated that she informed complainant that the letter be
written within three work days following the meeting so they could send
one to the contractor in a timely manner. S1 stated that complainant's
letter "again was routinely late and routinely had mistakes in it."
The record contains a copy of complainant's evaluation for the rating
period of November 1, 1999 to May 31, 2000. Therein, complainant received
an overall score of 4. The record further reflects that complainant was
advised that he needed to improve his abilities and consistency in written
communication skills; improve abilities to complete assignments within
agreed upon time frame; improving organizational skills and ability to
focus may help; and more direct supervisor may assistant complainant in
staying on task and making wise decisions on work priorities and on how
to handle unusual situations.
On October 12, 2004, the agency issued a final action wherein it
implemented the AJ's decision finding no discrimination.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. At 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. At 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Reasonable Accommodation
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations of
an otherwise qualified individual with a disability unless the agency can
show that accommodation would cause an undue hardship. See 29 C.F.R. �
1630.9. The employee must show a nexus between the disabling condition
and the requested accommodation. See Hampton v. United States Postal
Service, EEOC Appeal No. 01986308 (July 31, 2002).
In the instant case, we find that assuming, arguendo, that complainant
established he is a qualified individual with a disability, 3 he has
failed to show that the agency did not provide him with a reasonable
accommodation. A fair reading of the record indicates that complainant
sought to be accommodated by being reassigned to Lower Granite Dam
and receive two consecutive days off. Moreover, complainant did not
provide an explanation in the record concerning the connection between
his asserted disability and a possible reassignment to Lower Granite Dam.
Rather, he said he sought the reassignment for the shorter commute and to
be closer to his family. Moreover, the record also indicates that the
agency did offer complainant several reassignments to other positions,
including at least one that was closer to his family, but complainant
declined the offers.
With regard to his request for two consecutive days off, we note that
the record indicates that S1 and LR made every effort to accommodate
complainant with two consecutive days off, with the occasional exception,
mainly for training sessions. We note that in his testimony during the
fact-finding conference, complainant acknowledged working mostly five
days in a row.
Considering the entire record as reflected above, the Commission
determines that the AJ properly found that complainant was not denied
a reasonable accommodation.
Disparate Treatment
A claim of disparate treatment is examined under the three-party 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).
The Commission finds that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Complainant has not shown that
the agency's articulated reasons were a pretext for discrimination.
Harassment
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. 01970727 (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).
Applying these principles to the facts in this case, we concluded that
the record does not support a determination that the alleged incidents
constitute a discriminatory hostile work environment.
Accordingly, the agency's final action implementing the AJ's finding of
no discrimination was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (Z1199)
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
February 5, 2007
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2 On October 1, 2001, complainant separated from agency employment on
disability retirement.
3 The Commission presumes for purposes of analysis only and without so
finding, that complainant is a qualified individual with a disability.
??
??
??
??
2
01A62819
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
01A62819
10
0120051354
11
0120051354
11