01a40247
09-08-2005
Marvin Eason, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Marvin Eason v. Department of the Navy
01A40247
09-08-05
.
Marvin Eason,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A40247
Agency No. DON-02-61414-032
Hearing No. 120-2002-01581X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final order
concerning his formal complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405.
ISSUES PRESENTED
The issues presented are whether the EEOC Administrative Judge's
issuance of a decision without a hearing was appropriate and whether
the preponderance of the evidence does not establish that discrimination
occurred.
BACKGROUND
Complainant, a police officer at the Little Creek Naval Amphibious Base,
Regional Security Directorate, Norfolk, Virginia, filed a complaint
against the agency alleging that he was discriminated against on the
basis of disability (hypertension) when, on November 5, 2001, C-1,
the acting supervisor, assigned him to stand guard at a gate, during
�Threat Condition Charlie,� without a weapon or backup support.
Complainant also alleged that he was subjected to retaliation for engaging
in prior EEO activity when:
2(a) On November 11, 2001, while on a weekend shift, C-1 came into a
common area and, in front of complainant's co-workers, made the statement
that �a certain individual had the nerve to bring EEO charges against
me saying I put his life in danger.�
2(b) On November 13, 2001, C-1 berated him for having filed EEO charges
against him.
2(c) On November 16, 2001, C-1 gave him a form entitled �Medical Report
for Psychiatric Form� in response to his request to be paid for sick
leave that he had taken.
2(d) On February 4, 2002, the contents of reports that he prepared turned
up with changes and with enclosures or attachments missing.
2(e) In November 2001, he was denied a month's worth of overtime while on
light duty; however, on February 28, 2002, he discovered that a co-worker
was allowed to work overtime while on light duty.
2(f) On March 17, 2002, he found, on a desk in the Watch Commander's
office which had recently been used by C-1, a folder that had been taken
from his, complainant's, police unit two weeks before, and the folder was
missing tickets, as well as personal papers related to his EEO complaint.
Following an investigation, complainant was informed of his right to
an administrative hearing before an EEOC Administrative Judge (AJ).
Complainant elected to have the hearing; however, the AJ found that
there were no genuine issues of material fact and that summary judgment
in the agency's favor was appropriate. In reaching this determination,
the AJ adopted the statement of facts and law set forth by the agency.
According to the AJ, the complainant failed to establish a prima facie
case of discrimination based on disability or reprisal. Assuming
that prima facie cases were established, the AJ found that the agency
articulated legitimate reasons for each of its actions. The agency issued
a final action, which adopted the AJ's decision.
According to the record, while in a light duty status, police officers
have their weapons removed and are required to wear civilian attire,
not uniforms. On October 3, 2001, complainant was placed in a
light duty status for a period of 30 days because of hypertension.
On November 5, 2001, he reported to work in uniform, but he had not yet
been cleared by the medical clinic and his weapon had not been returned.
C-1 assigned complainant to work at a gate monitoring outbound traffic.
Even though the installation was under a threat condition, complainant
was not provided support and did not have a weapon. According to A-2,
complainant's second level supervisor, complainant should not have been
assigned to work the gate, because he was still on light duty, had not
received documentation to return to full duty and should not have been
in uniform without a weapon. A-2 later counseled C-1 about the matter.
After the above incident, complainant contacted an EEO counselor
alleging disability discrimination. On November 11, 2001, while on the
weekend shift, C-1 came into the common area and stated that "a certain
individual had the nerve to bring EEO charges against me saying that I
put his life in danger." According to complainant, the other employees
knew who C-1 was referring to and that some even turned to look at him.
At the fact finding conference, C-1 maintained that he merely made a
general statement to no one in particular because he was upset.<1>
On November 13, complainant maintained that C-1 berated him for having
filed an EEO complaint against him. According to complainant, C-1 asked
why he did not �f___ing forget this and let it go." Complainant stated
that he told C-1, three times, that he did not want to discuss the matter.
C-1 admitted telling complainant the he was upset about his filing a
complaint against him. When complainant stated that he did not want to
talk about it, C-1 claims that he stated, �okay fine.� C-1 stated that
he may have used profanity because at times he was �hostile,� �upset,�
and �emotionally unbalanced.� Fact Finding Conference at page 103.
According to the record, A-1, complainant's first-level supervisor,
was present during this incident. A-1 indicated that C-1 was upset,
but that he did not recall him using profanity or appearing hostile.
A-1 maintained that he later told C-1 that he should not have said
anything to complainant and that he, C-1, agreed.
Complainant maintained that he was so upset by his encounter with C-1 that
he had to take three days off because his blood pressure was elevated.
On November 16, complainant requested that C-1 provide him with the forms
that he needed to file in order to claim sick leave for the three days.
In response, complainant stated that C-1 gave him a document entitled
�Medical Report for Psychiatric Claim.� Complainant felt that, by
giving him the form, C-1 was implying that he had psychiatric problems
instead of a physical condition. According to C-1, complainant informed
him that his absence was job-related and that he wanted his sick leave
restored. Therefore, C-1 contacted Ms. G., an Administrative Assistant.
Ms. G. gave C-1 the form that he gave to complainant. According to C-1,
he had never seen the form before and that it was not something with
which he was familiar.
Complainant indicated that, in November 2001, he was not allowed to work
overtime while he was in a light duty status. C-1 testified that, since
September 11, 2001, officers were �almost automatically� working 4 hours
of overtime each day.<2> Complainant maintained that, in February 2002,
he discovered that a co-worker who was on light duty had been treated
differently.
On February 4, 2002, complainant discovered that the contents of reports
that he had prepared were changed and certain enclosures or attachments
were missing. Although complainant does not know who was responsible
for the changes and the missing documents, he believes it was based on
discrimination because something like this had never occurred before his
EEO activity. C-1 denied removing any documents from complainant's report
and did not know who did. According to C-1, everybody has access to the
reports and because the documents are paper-clipped together, the chances
for losing documents are very high. He also indicated that others have
reported having items missing from their reports. C-1 stated that he,
as an acting Watch Commander, and other supervisory officers routinely
review incident reports and make changes. He also acknowledged that,
on occasion, he has made changes to reports by complainant and other
officers.
Finally, on March 17, 2002, complainant discovered a folder that had
been taken from his police unit two weeks earlier. The folder was
missing tickets as well as personal papers related to his EEO complaint.
Complainant believed that C-2, a friend of C-1, took the folder from the
vehicle because he had access to the vehicle when the folder was removed.
C-1 stated that he had no knowledge or involvement with regard to the
folder/documentation that was missing from complainant's unit.
ANALYSIS AND FINDINGS
Summary Judgment
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 does not
sit as a fact finder. Id. 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. A disputed 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.
An AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
See Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11,
2003); Murphy v. Department of the Army, EEOC Appeal No. 01A04099 (July
11, 2003).
The courts have been clear that summary judgment is not to be used as
a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st
Cir. 1975). The Commission has noted that when a party submits an
affidavit and credibility is at issue, "there is a need for strident
cross-examination and summary judgment on such evidence is improper."
Pedersen v. Department of Justice, EEOC Request No. 05940339 (February
24, 1995). The hearing process is intended to be an extension of the
investigative process, designed to �ensure that the parties have a fair
and reasonable opportunity to explain and supplement the record and to
examine and cross-examine witnesses.� See EEOC Management Directive
(MD) 110, as revised, November 9, 1999, Chapter 6, page 6-1; see also
29 C.F.R. �� 1614.109(c) and (d). �Truncation of this process, while
material facts are still in dispute and the credibility of witnesses
is still ripe for challenge, improperly deprives complainant of a full
and fair investigation of her claims.� Mi S. Bang v. United States
Postal Service, EEOC Appeal No. 01961575 (March 26, 1998). See also
Peavley v. United States Postal Service, EEOC Request No. 05950628
(October 31, 1996); Chronister v. United States Postal Service, EEOC
Request No. 05940578 (April 23, 1995). Upon review of the record, we
find that the AJ properly determined that there were no genuine issues
of material fact. However, based upon our de novo review, we find that
summary judgment in favor of the agency was not appropriate with regard
to Issues 2(a), 2(b) and 2(e). Summary judgment was appropriate with
regard to Issues 1, 2(c), 2(d), and 2(f).
Issue 1
With respect to Issue 1, the AJ properly determined that judgment in favor
of the agency was appropriate. In this regard, we note complainant's
statement that, �[m]y disability has absolutely nothing to do with
[C-1] sending me to the gate without a weapon.� ROI at page 234.
Although complainant's assignment may have violated agency policy,
there is no evidence that discrimination occurred.
Issues 2(a) and 2(b)
We find that judgment in favor of the agency was not appropriate
with regard to Issues 2(a) and 2(b). The Commission has held that the
actions of a supervisor may be a per se violation where s/he intimidates
an employee and interferes with his/her EEO activity in any manner.
See Binseel v. Department of the Army, EEOC Request No. 05970584 (October
8, 1998); Yubuki v. Department of the Army, EEOC Request No. 05920778
(June 4, 1993). The agency has a continuing duty to promote the full
realization of equal employment opportunity in its policies and practices.
See 29 C.F.R. � 1614.101. This duty extends to every aspect of agency
personnel policy and practice in the employment, development, advancement,
and treatment of employees. See 29 C.F.R. � 1614.102. Agencies shall,
among other things, insure that managers and supervisors perform in
such a manner as to insure a continuing affirmative application and
vigorous enforcement of the policy of equal employment opportunity.
See 29 C.F.R. � 1614.102(a)(5).<3> In this case, we find that C-1's
actions violated both the letter and spirit of the EEOC Regulations.
His actions could only have been intended to intimidate complainant and
to cause him to withdraw from the EEO process.<4> In order to remedy
its violation of the EEOC Regulations, the agency shall take the steps
contained in the Order below.
Issue 2(e)
C-1 testified that complainant was not allowed to work overtime because
it was A-2's policy that employees in a light duty status not work
overtime.<5> C-1 acknowledged, however, that there have been times when
people on light duty have been allowed to work overtime,<6> but that
complainant �[d]idn't need any more stress. He had enough stress during
the day.�<7> We note, however, C-1's claim that, �I did not make the
decision alone. I am not the supervisor. That came from the Precinct
Commander.�<8> C-1 identified the Precinct Commander as being A-2.
A-1 testified that he did not recall denying complainant overtime.
A-2 maintained that, while he was responsible for approving overtime
requests, he had no knowledge of complainant's claim that he was denied
overtime. A-2 explained that the Watch Commander is the individual
who actually assigns overtime. According to A-2, the Watch Commander,
at his discretion, may assign overtime to individuals who are on light
duty based on their restrictions. Although A-2 recalled that complainant
had high blood pressure and problems with stress, he did not know if that
had any bearing on his not being allowed to work overtime. According to
complainant, in his rebuttal statement, C-1 was the Watch Commander.
According to the AJ, the complainant failed to establish a prima facie
case of discrimination based on reprisal. Assuming that a prima facie
case were established, the AJ found that the agency articulated legitimate
reasons for its actions. We find that the AJ erred in finding that
judgment in favor of the agency was appropriate regarding Issue 2(e).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation or Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
Once a prima facie case is established, 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). Once the agency has articulated such a reason, the question
becomes whether the proffered explanation was the true reason for the
agency's action, or merely a pretext for discrimination. Id.
In the present case, we find that complainant established a prima facie
case of discrimination based on reprisal. The record indicates that
complainant sought EEO counseling after C-1 assigned him to a gate
monitoring outbound traffic without a weapon on November 5, 2001.
On November 11, 2001, C-1 referenced complainant's EEO activity in
front of complainant's co-workers, and , on November 13, 2001, he asked
complainant to stop his EEO activity. Complainant refused C-1's request.
Subsequently, he was denied overtime during the month of November by C-1.
According to C-1, the decision to deny complainant overtime was based on
the fact that complainant �[d]idn't need any more stress. He had enough
stress during the day.� C-1 also maintained that this decision was made
in conjunction with A-2. We find that the explanation offered by C-1 is
a pretext for discrimination based on reprisal. We note in this regard,
the testimony of A-2 that he had no knowledge of complainant's claim
that he was denied overtime. Although A-2 recalled that complainant
had high blood pressure and problems with stress, he did not know if
that had any bearing on his not being allowed to work overtime.
Issues 2(c), 2(d), and 2(f)
We agree with the AJ that the agency is entitled to judgment in its favor
with regard to these allegations. Construing the evidence in a light most
favorable to complainant, the record lacks evidence from which unlawful
discrimination could be inferred. The agency articulated legitimate,
non-discriminatory explanations for these matters and complainant failed
to establish pretext.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
arguments on appeal, the agency's response, and arguments and evidence
not specifically discussed in this decision, the Commission affirms the
agency's final action in part and reverses the agency's final action
in part. The agency will comply with the remedial and other actions
set forth in the Order below.
ORDER
1. The agency is ORDERED within thirty (30) days to arrange EEO
training for C-1 and A-1 in order to insure that they act in accordance
with the EEOC regulations and, in particular, refrain from any action
and/or statements which restrain or interfere with an employee's use
of the EEO process. The Commission does not consider training to be a
disciplinary action.
2. The agency shall consider appropriate disciplinary action against
C-1 and A-1 and report its decision. If the agency decides to take
disciplinary action, it shall identify the action taken. If the agency
decides not to take disciplinary action, it shall set forth the reason(s)
for its decision not to impose discipline.
3. The agency shall determine the appropriate amount of back pay with
interest and other benefits due complainant, pursuant to 29 C.F.R. �
1614.501, for being denied overtime during the month of November 2001.
The complainant shall cooperate in the agency's efforts to compute the
amount of back pay, interest and benefits due, and shall provide all
relevant information requested by the agency. If there is a dispute
regarding the exact amount of back pay and/or benefits, the agency shall
issue a check to the complainant for the undisputed amount within sixty
(60) calendar days of the date the agency determines the amount it
believes to be due. The complainant may petition for enforcement or
clarification of the amount in dispute. The petition for clarification
or enforcement must be filed with the Compliance Officer, at the
address referenced in the statement entitled "Implementation of the
Commission's Decision."
4. The agency shall conduct a supplemental investigation pertaining to
complainant's entitlement to compensatory damages incurred as a result
of C-1's actions set forth in allegations 2(a), 2(b),<9> and 2(e).
The agency shall afford complainant sixty (60) days to submit additional
evidence in support of a claim for compensatory damages. Complainant
shall submit objective evidence (pursuant to the guidance given in Carle
v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993))
in support of his claim. Within forty-five (45) days of its receipt
of complainant's evidence, the agency shall issue a final decision
determining complainant's entitlement to compensatory damages, together
with appropriate appeal rights.
5. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation, including
evidence that the corrective action has been implemented. Copies of
all submissions to the Commission shall be served on complainant and
her representative.
POSTING ORDER (G0900)
The agency is ordered to post at its Regional Security Directorate located
at the Little Creek Naval Amphibious Base in Norfolk, Virginia copies
of the attached notice. Copies of the notice, after being signed by the
agency's duly authorized representative, shall be posted by the agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. The agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material. The
original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint. 29
C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the
agency. The attorney shall submit a verified statement of fees to the
agency -- not to the Equal Employment Opportunity Commission, Office of
Federal Operations -- within thirty (30) calendar days of this decision
becoming final. The agency shall then process the claim for attorney's
fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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
____09-08-05______________
Date
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found that
a violation of Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791 et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment. The Regional Security Directorate located at the Little
Creek Naval Amphibious Base in Norfolk, Virginia (hereinafter, the agency)
confirms its commitment to comply with these statutory provisions and
will not take action against individuals because they have exercised
their rights under law.
The agency supports and will comply with such Federal law and will
not take action against individuals because they have exercised their
rights under the law. The Commission found that the agency engaged
in discrimination based on reprisal when a management official tried
to interfere with an employee's use of the EEO process and denied him
overtime opportunities. The agency has remedied the employee affected
by the Commission's finding of reprisal discrimination by, among other
things, ordering that the responsible management officials receive EEO
training and that the employee receive back pay for the lost overtime.
The agency will ensure that officials responsible for personnel decisions
and terms and conditions of employment will abide by the requirements
of all Federal equal employment opportunity laws.
The agency will not in any manner restrain, interfere, coerce, or
retaliate against any individual who exercises his or her right to oppose
practices made unlawful by, or who participates in proceedings pursuant
to, Federal equal employment opportunity law.
_______________________________
Date Posted: ____________________
Posting Expires: ________________
29 C.F.R. Part 1614
1We note, however, that, according to the EEO Counselor's report,
C-1 stated that he went into the area and ran into another employee.
The employee asked him how he, C-1, was doing. In response, C-1 indicated
that he was fine, but that someone had filed an EEO complaint against him.
C-1 denied making the comment in front of a group of people.
2Fact Finding Conference at page 93.
3Although C-1 was complainant's acting supervisor during this period,
we find that his authorization to direct complainant's day-to-day
work activities qualifies him as a supervisor for purposes of
holding the agency liable for his conduct. See Burlington Industries,
Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton,
524 U.S. 775 (1998). We also note that, at least with regard to Issue
2(b), A-1 was present when C-1 spoke to complainant about dropping his
EEO complaint. During the discussion, A-1 made no effort to stop C-1
from trying to dissuade complainant from engaging in EEO activity.
4The agency, in its statement of facts and law, makes the curious argument
that C-1's actions were �an expression of frustration by complainant's
supervisor for having been accused of putting another officer's life
in danger, wherein he did not identify complainant.� The agency's
view of allegation 2(b) is equally curious. The agency maintained
that �complainant's supervisor attempted to discuss the dispute with
complainant, but was rebuffed.� We note, however, that C-1 described his
own demeanor as being �hostile,� �upset,� and �emotionally unbalanced.�
5Fact Finding Conference at page 92.
6We note that there is evidence in the record of at least four other
employees who, while in a light duty status were allowed to work overtime.
The record also indicates that these employees never engaged in EEO
activity.
7Id.
8Id.
9See Pruette v. USPS, EEOC Appeal No 01951567 (March 10, 1998).
In Pruette the Commission ordered the agency to provide compensatory
damages to an employee after finding that an agency official attempted
to dissuade the employee from filing an EEO complaint and the employee
was able to establish that she suffered emotional distress as a result
of the agency official's actions.