Michael A. Rainbolt, Complainant,v.Norman Y. Mineta, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionFeb 1, 2007
0120033857 (E.E.O.C. Feb. 1, 2007)

0120033857

02-01-2007

Michael A. Rainbolt, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.


Michael A. Rainbolt,

Complainant,

v.

Norman Y. Mineta,

Secretary,

Department of Transportation,

Agency.

Appeal No. 0120033857[1]

Hearing Nos. 280-A3-4018X, -4019X, & -4020X

Agency No. 4-02-4062

DECISION

JURISDICTION

On June 18, 2003, complainant filed an appeal from the agency's May 14,

2003 final order 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation

Act), as amended, 29 U.S.C. � 791 et seq. The appeal is deemed timely and

is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following

reasons, the Commission affirms in part and reverses in part the agency's

final order.

BACKGROUND

During the relevant period, complainant was employed as an Airway

Telecommunications Systems Specialist (ATSS) at a Kansas facility of the

agency. On November 20, 2001, complainant initiated contact with an EEO

Counselor and, on December 31, 2001, filed a formal EEO complaint alleging

that the agency discriminated against him based on race (Native American),

disability (psoriasis and rheumatoid & psoriatic arthritis), and reprisal

for prior EEO activity when: (1) in November 2001, it failed to select

complainant for a Communication Specialist position, Automation Specialist

position, Environmental Specialist position or Telecommunications

Specialist position, and selected less qualified candidates; and (2) since

September 1998, it subjected complainant to a hostile work environment.

Specifically, as to (2), complainant asserted that he reported the

harassment to agency management on several occasions, without appropriate

response.

The agency conducted an investigation of complainant's claims. At the

conclusion of the investigation, the agency provided complainant with a

copy of the report of investigation, and a notice of the right to request a

hearing before an EEOC Administrative Judge (AJ) or an immediate final

decision by it. Complainant requested a hearing, and on March 18 and 19,

2003, an AJ conducted a hearing on complainant's claims. The information

that follows emerged during the fact-finding stages of the EEO process.

Per a letter from the National Psoriasis Foundation, in the record,

psoriasis is a non-contagious disease that can range from a single

fingernail pit, to a small blemished fraction of skin surface area, to

total body skin disfigurement or crippling arthritis. Complainant stated

that psoriasis is a condition in which the body's belief that it needs to

heal itself accelerates, resulting in excessive skin flaking that can cause

redness, extensive painful itching, and possibly bleeding. Complainant

testified that he has severe psoriasis on the back and front of his limbs

and has been diagnosed with it over at least 70% of his body. He testified

that he has had psoriasis all of his life, but it worsened due to the lack

of sunlight when he moved to Alaska for a prior position. Complainant added

that the skin condition of his psoriasis alone does not necessarily limit

his abilities, but that he does have accompanying arthritis, which causes

his joints to swell and results in constant pain.

Complainant testified that he was diagnosed with rheumatoid arthritis in

2000, and later with psoriatic arthritis. He testified that the arthritis

affects his hips, ankles, knees, shoulders, wrists, and back, and requires

him to use a cane 90% of the time. Complainant stated that his legs do not

support him and can give out at any time, so the only time he does not use

a cane is at home because he can move at a slower pace and lean on chairs

if necessary. He stated that he gets shooting pains which cause the

painful part of his body to become "lame," and that his physician would

like him to use a cane all the time. Complainant added that there are

occasions in which he needs two canes to maneuver around, and sometimes he

requires assistance to and from his vehicle or his work area. Complainant

acknowledged that his physicians have prescribed pain medications, but

explained that, due to his religious beliefs and the potential for side

effects, he only uses aspirin and vitamins and herbs recommended by his

physicians or pain management skills. He stated further that he cannot

take medications that may impair his driving and affect his ability to

work.

Complainant stated that his arthritis prevents him from climbing a ladder

as one job task requires. In this regard, he testified that he cannot

change an ESIS, a projector that displays weather or other information on

the ceiling, because it is necessary to climb a ladder to reach it and he

can not do that. He testified that other personnel bring the equipment

down so that he may perform routine maintenance on it.

Complainant provided medical articles about the condition of psoriasis. In

addition, for his arthritis, complainant provided documentation from his

physician, dated January 24, 2002, stating; "I have reviewed physical

requirements for [complainant's position]. He may do all of these

requirements except he should be restricted from using ladders due to

safety concerns with imbalance." Subsequently, complainant provided follow-

up documentation from his physician, stating; "climbing ladder restriction

is permanent."

Complainant stated that management was aware of his impairments and that he

asked the agency to assist him in finding another job because there is a

high probability that he will not be able to do his ATSS job in the future

because, due to his arthritis, he will need a job that he can perform from

a wheelchair. He stated that the agency failed to select him for the

positions he requested.

Further, complainant stated that he requested another job from management

because he wanted to get away from his coworkers' harassment. Complainant

stated that the constant hostility from his coworkers made him not want to

go to work, and that the stress from the environment worsened his

psoriasis.[2] The record indicates that complainant and his coworkers

share some workspace and equipment, although they did not necessarily work

together during the same hours. Complainant mainly worked the "swing"

shift from 4 p.m. to 2 a.m., and indicated that he sometimes worked alone

during this shift.

Complainant testified that, during the summer of 1999, a coworker (C1) sent

a negative email to complainant's then-supervisor (S1). C1 acknowledged

sending the e-mail message. He wrote, in pertinent part:

I would like to let it be known that the situation with

[complainant's] skin shedding is getting a bit hard to bare[sp]. . . .

[T]he backs and seats of chairs literally covered with

[complainant's] dead skin, phones inundated with his skin, desk tops

and work surfaces covered with flakes of vile particles of

[complainant's] flesh makes me ill. . . . Moreover the possibility

of ingesting the particles and flacks[sp] of his dead skin through the

air and physical contact is to say the least is frightening. . . . I

can not speak for my coworkers but I think several of them fill[sp]

the same way. . . . I know [complainant] is suffering both mentally

and physically with this affliction. But we should not have to suffer

with him due to his unsanitary habits of leaving his remains on common

equipment and work surfaces we share.

Complainant stated that, in April 2002, a coworker (C2) made a racially

disparaging joke, to which complainant responded that the joke was

offensive. Further, complainant stated that, two days later, C2 used

obscene and racially derogatory language toward him.[3]

Complainant further stated that, on an ongoing basis, most of his coworkers

refused to communicate with him, including refusing to convey essential

work-related information between tours of duty. He stated that they only

spoke to him if they needed something from him. He added that his

coworkers, except C3, have said that he does not bathe; that he could do

something about the shedding problem if he wanted to; that they do not want

to sit in a chair or use equipment used by him for fear of catching

psoriasis; and that he has psoriasis because he leads a "sinful" life.

Complainant stated that coworkers have left "post-it" notes on his desk

saying that he needed to take a bath and, in late 2001, someone left a

newspaper article in his mailbox with handwriting stating; "Here is an

experimental laser treatment, Why don't you have it done? It will help

keep your flakes off our equipment."

C3 corroborated complainant's contentions of an environment negative toward

him. Specifically, C3 stated "[the coworkers] would rather that

[complainant] were not there." Further, C3 said that coworkers did not

talk to complainant unless they needed to speak with him as a last resort

for information, and coworkers felt that there were no consequences for

their actions so they acted as they wanted. In addition, C3 indicated that

the only action he saw management take was S1 distributing pamphlets about

psoriasis and supplying the office with disinfectant and wipes. He added

that S2 generally tried to ignore the matter.

Another coworker (C6) acknowledged that he thought complainant's skin

shedding was "pretty annoying and nasty" and that he told complainant that

he should not be at the workplace if he could not climb a ladder. C6

added, "[Coworkers] only have one problem with [complainant] and that is

his cleanliness problems and they would appreciate if he would clean up

after himself." Another coworker, who served as acting supervisor (C7),

acknowledged that she witnessed others push complainant's chair far away

from the work area. Further, C7 stated that she has heard coworkers

question complainant's bathing habits and refuse to sit in a chair used by

complainant. C1 stated that he would speak to complainant, but "I do stay

away from the phone he is usually using and don't share snacks with him [,

b]ut I don't make this obvious." C8 stated that coworkers would mention

concerns to her regarding complainant's psoriasis so that she could pass it

on to management. C8 explained, for instance, "[o]ne example of the

concerns was someone once took a computer keyboard and turned it over and a

large amount of skin fell [out]." Another coworker stated that he has

heard people make disparaging remarks about complainant, including a fellow

employee who referred to complainant as a "dog." Finally, another coworker

(C9) stated; "It's ridiculous when you come to work and the debris is on

the chairs and phones and [complainant] walks away . . . [no]one wants to

be the bad person and we have brought this to the attention of management,

we have a common work area and I don't know if we can catch something or

not." Coworkers stated that S2 would clean the shared area of skin debris

when complainant failed to do so.

The consensus among most of complainant's coworkers was that complainant

created a hostile work environment for himself and others by failing to

clean shared areas and equipment of his skin debris and having body odor.

Some of them added that complainant's personality was less than desirable.

Complainant's coworkers stated that they did not express their opinions in

complainant's presence, but they did remind him consistently to clean-up

after himself.

Complainant asserted that his coworkers greatly exaggerated the extent of

his skin flaking and denied that he did not maintain proper personal

hygiene. Complainant acknowledged that he sheds some skin, but stated that

he cleans up after himself and takes measures to minimize the effects of

his psoriasis on others. For instance, complainant stated that he attempts

to minimize skin shedding by wearing long sleeve shirts, even during hot

weather, and tries to minimize the view of his impairment by wearing a vest

so that the blood on his back can not be seen. In addition, complainant

stated that he has tried sunlamps, oatmeal baths, creams and topical

ointments for the symptoms of his psoriasis, some of which he acknowledged

have odors. Complainant also pointed out, "I work a swing shift, which is

from four [p.m.] to two [a.m.], and a cleaning party usually comes in and

vacuums the area between 10:30 and [2] every day, that . . . makes you

wonder where's all the [alleged] flakiness coming from . . . I can't lose

that much skin." C3 corroborated complainant's contentions, including the

fact that the coworkers are exaggerating the extent of the skin flaking.

For example, C3 indicated that complainant visited his home on many

occasions socially, and he never needed to clean up after complainant due

to flaking skin. C3, who often worked overlapping shifts with complainant,

also testified that he witnessed complainant cleaning up after himself at

work, noting that complainant tried to always sit on the same chair and use

the same computer and cleaned up the area after using it.

Rather than assisting him with his coworkers, complainant alleged that

management encouraged isolation between himself and the rest of the unit.

In his closing testimony, complainant stated, "people just don't want to

deal with [the psoriasis] and they feel there [are] no consequences." He

noted that there is no record of discussions by management with coworkers

regarding his impairment. Coworkers acknowledged, in affidavits, that they

were not disciplined for voicing their opinions or concerns regarding

complainant's psoriasis. Complainant stated that the only action taken by

management was distributing psoriasis pamphlets to all staff. Further,

complainant alleged that management allowed rumors that he was a trouble-

maker and that he did not do any work.

Regarding the alleged hostile work environment, complainant's former

supervisor, S1, testified that there has been a problem regarding

complainant's psoriasis and he tried to educate the coworkers about it and

asked complainant to clean up after himself. Complainant's current

supervisor, S2, stated that S1 gave him the medical information regarding

psoriasis that he distributed to employees and informed him of what he did

to keep the area clean, e.g., provided sanitary wipes and a vacuum cleaner.

S2 stated that he asked complainant to clean up after himself and

explained to coworkers that complainant may not be able to minimize his

flaking skin. S2 stated that complainant mentioned that he had received a

disability vehicle placard from his physician which prompted S2 to send

complainant a letter inquiring whether he needed accommodation, to which

complainant responded that he did not. S2 elaborated that the only

accommodation that complainant required was for someone to assist him with

tasks that required climbing a ladder.

On March 20, 2003, the AJ issued his Findings of Fact and Conclusions of

Law regarding complainant's claims. He found that complainant had not

established that he met the definition of an individual with a disability

with respect to his psoriasis, stating that he failed to show a physical

impairment that substantially limited one or more major life activities.

However, alternatively, the AJ found further that complainant is an

individual with a disability with respect to his arthritis, stating that he

is substantially limited in the major life activity of walking. Regarding

claim (1), the AJ concluded that complainant failed to show that he was the

best qualified candidate for the positions at issue. As to claim (2), the

AJ also found no violation of the law because he could not conclude

complainant was covered by the Rehabilitation Act because of his psoriasis,

but noted:

I would be remiss to ignore the fact that there is, without doubt,

workplace hostility directed toward Complainant as a result of his

psoriasis. . . . [T]here is sufficient evidence to support a

conclusion that [c]omplainant is ostracized and at times treated as a

pariah by some of his coworkers. While such a situation is not

illegal under the laws enforced by the Commission, neither does the

situation appear conducive to a healthy and cohesive federal work

environment. . . . [H]ad there been evidence adduced which would

support a finding that Complainant was and/or is regarded as disabled

as a result of his psoriasis, this Bench Decision would have contained

a lengthy, lengthy section on remedies [based on a finding of

discrimination].

In a decision dated May 14, 2003, the agency accepted and fully implemented

the AJ's decision. The instant appeal followed from complainant.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ will be upheld if supported by substantial evidence in the record.

Substantial evidence is defined as "such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion." Universal Camera

Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation

omitted). A finding regarding whether or not discriminatory intent existed

is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293

(1982). An AJ's conclusions of law are subject to a de novo standard of

review, whether or not a hearing was held.

An AJ's credibility determination based on the demeanor of a witness or on

the tone of voice of a witness will be accepted unless documents or other

objective evidence so contradicts the testimony or the testimony so lacks

in credibility that a reasonable fact finder would not credit it. See EEOC

Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).

As an initial matter, the Commission notes that portions of the hearing in

this case were held by telephone at the AJ's behest, without the objection

of the parties. The Commission has held that testimony may not be taken by

telephone in the absence of exigent circumstances, unless at the joint

request of the parties and provided specified conditions have been met.

See Louthen v. United States Postal Service, EEOC Appeal No. 01A44521 (May

17, 2006).[4] However, since the facts of this case pre-date Louthen we

will assess the propriety of conducting the hearing telephonically by

considering the totality of the circumstances. Here, it is unclear whether

exigent circumstances existed. On the other hand, it is clear that there

were no issues of witness credibility that might have been impacted by the

taking of testimony telephonically. Under these circumstances, even if it

is assumed that the AJ abused his discretion in this case by taking

testimony telephonically, the Commission finds that his action constituted

harmless error.

Non-Selections

In analyzing a disparate treatment claim, where the agency denies that its

decisions were motivated by complainant's protected class(es) and there is

no direct evidence of discrimination, we apply a burden-shifting method of

proof. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); see Lawson

v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001); see also Hochstadt v.

Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D.

Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976). First, complainant must

establish a prima facie case 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. McDonnell Douglas, 411 U.S. at 802. Next, the agency must

articulate a legitimate, nondiscriminatory reason(s) for its actions. Id.

If the agency is successful, then the complainant must prove, by a

preponderance of the evidence, that the legitimate reason(s) proffered by

the agency was a pretext for discrimination. McDonnell Douglas, 411 U.S.

at 804.

After a careful review of the record, as to claim (1), the Commission finds

that the AJ's finding of no discrimination is supported by substantial

evidence. The prima facie inquiry may be dispensed with in this case since

the agency has articulated legitimate and nondiscriminatory reasons for its

conduct. See U. S. Postal Service Board of Governors v. Aikens, 460 U.S.

711 (1983). To ultimately prevail, complainant must prove, by a

preponderance of the evidence, that the agency's explanation is a pretext

for discrimination. Texas Department of Community Affairs v. Burdine, 450

U.S. 248, 256 (1981).

Here, the Commission finds that, assuming arguendo, complainant established

a prima facie case of discrimination based on race, disability and

reprisal, the agency articulated legitimate, nondiscriminatory reasons for

its actions - that better qualified applicants were selected for the

disputed positions. See McDonnell Douglas, 411 U.S. at 802; Lawson, 245

F.3d at 922; Hochstadt, 425 F. Supp. at 324. We concur with the AJ's

finding that complainant failed to prove, by substantial evidence in the

record, that the agency's legitimate, nondiscriminatory reasons for its

actions were pretextual. Thus, we affirm the AJ's conclusion that

complainant failed to prove that the agency discriminated against him based

on race, disability, or reprisal as to the above-mentioned non-selections.

Hostile Work Environment

Harassment of an employee that would not occur but for the employee's race,

color, sex, national origin, age, disability, or religion is unlawful.

McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985). Harassment is

actionable only if the conduct to which the complainant has been subjected

was sufficiently severe or pervasive to alter the conditions of the

complainant's employment. See Cobb v. Dep't of the Treasury, EEOC Request

No. 05970077 (March 13, 1997); Humphrey v. U. S. Postal Service, EEOC

Appeal No. 01965238 (October 16, 1998). 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. 915.002 (March 8, 1994). In a case of co-worker

harassment, an agency is responsible for acts of harassment in the

workplace where the agency (or its agents) knew or should have known of the

conduct, unless it can show that it took immediate and appropriate

corrective action. See 29 C.F.R. � 1604.11(d).

a. Race and Reprisal

With respect to complainant's claim of harassment based on race and

reprisal, we find that the substantial evidence of record supports the AJ's

finding of no discrimination. Complainant failed to show that he was

subjected to severe or pervasive harassment by his coworkers because of his

race or prior EEO activity.[5]

b. Disability

On the other hand, regarding complainant's claim of harassment on the basis

of disability, the Commission finds that the substantial evidence of record

does not support the AJ's finding that complainant was not discriminated

against on the basis of disability, and we find that with respect to this

basis, a preponderance of evidence in the record shows that discriminatory

harassment did occur. To establish disability-based harassment,

complainant must show that: (i) he is a qualified individual with a

disability [ii] who was subjected to unwelcome harassment [iii] based on

his disability [iv] that was severe or pervasive enough to affect a term,

condition, or privilege of his employment. See Flowers v. Southern Reg'l

Physician Serv. Inc., 247 F.3d 229, 235-36 (5th Cir. 2001); Fox v. General

Motors Corp.; 247 F.3d 169, 177 (4th Cir. 2001), Bradley v. Widnall, 232

F.3d 626, 631 (8th Cir. 2000)). We find that complainant, in the instant

case, satisfied this test.

i. Qualified Individual with a Disability

As an initial matter, an individual with a disability is one who: 1) has a

physical or mental impairment that substantially limits one or more of that

person's major life activities; 2) has a history of such impairment; or 3)

is regarded as having such an impairment. 29 C.F.R. � 1630.2(g). A

physical impairment is "[a]ny physiological disorder, or condition,

cosmetic disfigurement, or anatomical loss affecting one or more of the

following body systems: neurological, musculoskeletal, special sense

organs, respiratory (including speech organs), cardiovascular,

reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and

endocrine." 29 C.F.R. � 1630.2(h). In 29 C.F.R. � 1630.2(j),

"substantially limited" is defined as the inability to perform a major life

activity that the average person in the general population can perform; or

significantly restricted as to the condition, manner, or duration under

which the average person in the general population can perform that same

major life activity. Major life activities include, but are not limited

to, the function of caring for one's self, performing manual tasks,

walking, seeing, hearing, speaking, breathing, learning, and working. 29

C.F.R. � 1630.2(i); see Appendix to 29 C.F.R. Part 1630 - Interpretive

Guidance on Title I of the Americans with Disabilities Act (Appendix to 29

C.F.R. Part 1630). A qualified individual with a disability is one who

satisfies the requirements for the employment position he holds or desires

and can perform the essential functions of that position with or without

reasonable accommodation. 29 C.F.R. � 1630.2(m).

In this case, we find that the record establishes that complainant's

psoriasis has caused arthritis that substantially limits him in the major

life activity of walking. Complainant stated that his joints swell, that

his legs do not support him and can give out at any time, and that he is in

constant pain. Further, complainant stated that he uses a cane, sometimes

two, all of the time, except when he is at home and that parts of his body

occasionally become "lame." He noted that his physician would like him to

use a cane all the time. Complainant added that he uses natural remedies

and pain management rather than prescribed medications for his consistent

pain. Since the limitations in walking caused by complainant's arthritis

are substantial, complainant satisfies the statutory definition of an

individual with a disability.

The record also establishes that complainant is qualified to perform the

essential functions of his position. Essentially, it is undisputed that

complainant could perform the essential functions of his position and, as

corroborated by complainant's supervisor - S2, only required assistance

with climbing a ladder, which does not appear to be an essential function.

Based on the evidence of record, we find that complainant is a qualified

individual with a disability.

ii and iii. The Harassment was Unwelcome and Based on

Disability

It is undisputed that complainant has psoriasis and that his psoriasis is

accompanied by excessive skin shedding and arthritis. It is further

undisputed that, one coworker, C6, told complainant that he should not be

at the workplace if he can not climb a ladder, and that most of

complainant's coworkers complained constantly about complainant's skin

condition. The evidence shows that complainant's coworkers did not want to

sit in chairs or use equipment used by complainant for fear of catching

psoriasis, thought his skin debris resulted from poor personal hygiene,

characterized his skin shedding as "vile" or "frightening" or "pretty

annoying and nasty," did not want to eat around complainant, questioned

complainant's bathing habits, indicated he had the skin condition because

of his "sinful" lifestyle, made disparaging remarks about complainant, and

ostracized him.

Complainant stated that coworkers would leave notes on his desk instructing

him to bathe or seek medical treatment. Complainant alleged that

management encouraged the isolation by failing to address it appropriately.

C3 corroborated complainant's contentions about the negative environment

toward him and added "[the coworkers] would rather that [complainant] were

not [in the workplace]." One coworker stated that he did not like to eat

around complainant, and several coworkers stated that they did not like to

use the same chair or equipment as complainant. Further, we note the AJ's

statement, following a hearing, that there was definitely workplace

hostility toward complainant due to his psoriasis. For these reasons, we

find that complainant did not welcome the conduct to which he was subjected

and that the conduct was based upon his psoriasis which was characterized

by various symptoms.

iv. The Harassment Affected a Term, Condition, or Privilege of

Employment

We find that complainant has shown that the harassment was sufficiently

pervasive that it created an intimidating, hostile, or offensive work

environment, such that he did not want to go to work. In this regard, we

note the previously-cited testimony of complainant, C3, and complainant's

other coworkers regarding the way in which complainant was treated due to

his flaking skin - a symptom of his psoriasis. In reaching this

conclusion, we acknowledge that agency management may clearly require an

employee to clean his/her individual or shared workspace and that his/her

fellow employees may voice concerns through the supervisory chain if s/he

fails to do so. However, in the instant case, the coworkers' conduct was

beyond voicing legitimate concerns. The evidence indicates that the

coworkers exaggerated the extent of the skin shedding problem as

corroborated by witness testimony, and that a custodian cleaned the

workspace everyday during the last half of his shift. The vitriolic

nature of their attitude towards complainant's condition was revealed in

their emails and notes when, for example: C1 wrote that seeing the "vile

particles of . flesh makes me ill," and described the situation as

"frightening;" C6 called complainant's psoriasis "nasty" and said he should

not be in the workplace if he can not climb a ladder; C7 indicating that he

tries not to use the same telephone as complainant and not share snacks

with him; another coworker referred to complainant as a "dog"; and C9

expressing a fear about catching "something" from complainant. This list

is not exhaustive, but it clearly shows the coworkers' conduct here was

beyond simply uncivil. Rather, it was "so objectively offensive as to

alter the 'conditions' of the [complainant's] employment." Oncale v.

Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998). Thus, under the

facts of this particular case, we conclude that the weight of the evidence

establishes that complainant was unlawfully subjected to a hostile work

environment because of his disability.

v. Liability

The final issue is whether the agency should be held liable for the actions

of complainant's co-workers. The record revealed that agency management

was clearly aware of the coworkers' actions over a prolonged period of

time, and that the only action they took was to distribute pamphlets in the

workplace about psoriasis. Coworkers stated that they were not counseled

or disciplined for their actions. We find that the agency did not fulfill

its obligation to take prompt remedial action reasonably calculated to end

the harassment once it learned of complainant's allegations and that it did

not take appropriate steps to ensure that the harassment would not recur.

See 29 C.F.R. � 1604.11(d).

CONCLUSION

After a careful review of the record, including complainant's contentions

on appeal and arguments and evidence not specifically addressed in this

decision, we AFFIRM the agency's decision as to claim (1) concerning the

November 2001 non-selections. However, we REVERSE the agency's final

decision regarding claim (2), finding that the preponderance of the

evidence proves that complainant was subjected to a discriminatory hostile

work environment since 1998 because of his psoriasis. In order to remedy

complainant for this discrimination, the agency shall comply with the Order

below.

ORDER

The agency is ordered to take the following remedial actions:

(1) The agency shall take steps to insure that complainant is no longer

subjected to harassment by his coworkers and management. The agency shall

monitor aggressively the environment to accomplish this.

(2) The agency shall provide EEO sensitivity training to all employees in

the office at issue, designed to eliminate acts of harassment in the

workplace.

(3) The agency shall consider taking disciplinary action against the

responsible management officials and the coworkers who engaged in the

harassing conduct. The agency shall report its

decision in its compliance report to EEOC. 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. It should be noted that the

Commission does not consider training to be a disciplinary action.

(4) The agency shall conduct a supplemental investigation pertaining to

complainant's entitlement to compensatory damages incurred as a result of

the agency's discriminatory actions in this matter. 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 shall post copies of the attached notice in accordance with

the statement entitled "Posting Order."

(6) 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 verifying that

the corrective action has been implemented.

POSTING ORDER (G0900)

The agency is ordered to post at its Garnett, Kansas facility 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 tends 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 (T0900)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion of your

complaint which the Commission has affirmed and that portion of the

complaint which has been remanded for continued administrative processing.

In the alternative, you may file a civil action after one hundred and

eighty (180) calendar days of the date you filed your complaint with the

agency, or your appeal with the Commission, until such time as the agency

issues its final decision on your complaint. 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:

______________________________

Stephen Llewellyn

Acting Executive Officer

Executive Secretariat

February 1, 2007

__________________

Date

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[1] Originally, this appeal was identified as docket number 01A33857. Due

to changes in EEOC's computerized records tracking system, the appeal

docket number has been restyled to 0120033857.

[2] We note that complainant provided articles stating that stress affects

psoriasis negatively.

[3] The record revealed that an accountability board conducted an

investigation and C2 was issued a written admonishment for his actions.

[4] In Louthen, the Commission has promulgated its policy regarding the

taking of telephonic testimony in the future by setting forth explicit

standards and obligations on its Administrative Judges and the parties.

Louthen requires either a finding of exigent circumstances or a joint and

voluntary request by the parties with their informed consent. When

assessing prior instances of telephonic testimony, the Commission will

determine whether an abuse of discretion has occurred by considering the

totality of the circumstances. In particular, the Commission will consider

factors such as whether there were exigent circumstances, whether a party

objected to the taking of telephonic testimony, whether the credibility of

any witnesses testifying telephonically is at issue, and the importance of

the testimony given telephonically. Further, where telephonic testimony

was improperly taken, the Commission will scrutinize the evidence of record

to determine whether the error was harmless.

[5] We find that the incidents, in April 2002, involving a racially

derogatory joke and remark by C2 were sufficiently isolated that they did

not create a hostile work environment for complainant based on his race.