0120082553
05-27-2011
Michael E. Littles, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Michael E. Littles,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120082553
Hearing No. 510-2007-00205X
Agency Nos. 200I-0673-2005103381, 200I-0673-2006101263,
200I-0673-2006102900
DECISION
Complainant timely filed an appeal from the Agency’s April 14,
2008, final decision 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, as
amended, 29 U.S.C. § 791 et seq. The Commission accepts the appeal
pursuant to 29 C.F.R. § 1614.405(a). For the reasons that follow,
the Commission AFFIRMS the Agency’s final decision.
ISSUE PRESENTED
The issue presented before the Commission on appeal is whether Complainant
established by preponderant evidence he was harassed and/or treated
differently on the bases of race (African American), disability (knee
arthritis), and reprisal (prior EEO activity), and denied a reasonable
accommodation.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Certified Prosthetist at the Agency’s James Haley Veterans Medical
Facility in Tampa, Florida. In formal complaints dated September 15,
2005, March 17, 2006, and August 10, 2006, he alleged that he was
discriminated against when management did the following1:
1. in the summer of 2003, Mr. F, the Chief of Prosthetic Services, used
the term “you people” to refer to Complainant and a Hispanic employee;
2. on December 15, 2004, Mr. SY, Deputy Director for the VISN 8 program,
did not reply to Complainant’s email requesting a meeting regarding
reprisal activity taken against Complaint;
3. on March 23, 2005, Mr. JY, Assistant Chief, Prosthetic Services,
did not include Complainant as an addressee when Mr. JY sent out an
email about a Congressperson’s visit to discuss artificial limbs,
Complainant’s area of expertise;
4. on March 30, 2005, Mr. F did not include Complainant in a second
meeting regarding artificial limbs and falsely stated that Complainant
knew nothing about the Transfemoral Microprocessor Knee;
5. on March 31, 2005, Mr. JB, Supervisor, Orthotics/Prosthetics
Laboratory, asked Complainant to leave the work area during a
Congressperson’s visit even though Complainant’s work was on display
and no one else had knowledge of his work;
6. on June 20, 2005, and August 11, 2005, Mr. JB attempted to make
Complainant look bad by indicating that Complainant was not at work when
in fact he was;
7. during the week of July 18, 2005, and before, management took no
action when Complainant complained of a co-worker, Mr. K, aggressively
threatening Complainant’s whereabouts, workload, and interference with
Complainant’s telephone calls;
8. on July 28, 2005, Mr. K again threatened Complainant by saying
“anytime you want, we can go and settle this some place else”;
9. on July 28, 2005, Complainant reported the preceding incident to
management but no action was taken other than meeting with Mr. K to get
his side of the story;
10. on August 2, 2005, Complainant received a time and attendance
memorandum from Mr. F, which was addressed to all employees even though
Complainant allegedly had no previous problems with time and attendance;
11. on August 3, 2005, Mr. F appointed Mr. GM instead of Complaint as
the Acting Chief of the Orthotic Lab;
12. on August 11, 2005, Mr. F instructed Complainant not to engage in
the fabrication process for making artificial limbs;
13. on August 14, 2005, Mr. F violated Complainant’s privacy rights
by accessing Complainant’s medical records;
14. on or about August 23, 2005, and September 9, 2005, Mr. F asked
Complainant to return a laptop computer, a mycelectrical arm program,
and a tracer program that Complainant had previously been allowed to
use at home;
15. on August 24, 2005, Mr. JB and others constantly watched and conspired
against Complainant;
16. on or about August 24, 2005, Mr. JB requested that Complainant sign
a blank performance appraisal;
17. on or about October 31, 2005, Complainant learned that his signature
and dates had been forged on his performance appraisal period for the
April 1, 2003, through March 31, 2004 ratings period;
18. on August 24, 2005, management placed Complainant on sick leave
certification;
19. on August 24, 2005, Mr. F denied Complainant’s request for use of
authorized leave which Complainant had planned to use for the purpose
of attending an August 26, 2005, new artificial limb technology training;
20. on February 2, 2006, management issued Complainant a written
counseling letter dated January 30, 2006;
21. on February 23, 2006, management issued Complainant another written
counseling letter;
22. on February 26, 2006, and before, management assigned Complainant
to perform duties as an Orthotic Fitter;
23. on January 23, 2006, Mr. JB sent Complainant an email, which
erroneously informed Complainant that Human Resources indicated that
he did not provide sufficient information to support his request for
reasonable accommodation;
24. on February 16, 2006, management failed to respond to his request
for a reasonable accommodation; and
25. on May 29, 2006, he was not selected for the position of
Orthotist/Prosthetis, GS-12, pursuant to Vacancy Announcement 06-43-NZ.
At the conclusion of its investigation of these matters, the Agency
provided Complainant with a copy of the report of investigation (ROI) and
notice of his right to request a hearing before an EEOC Administrative
Judge or a final decision based on the record from the Agency.
Complainant initially requested a hearing but subsequently withdrew his
request in favor of a final decision from the Agency. Consequently,
the Agency issued a final decision, which concluded that Complainant
failed to prove that the Agency subjected him to discrimination.
Complainant thereafter initiated this appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency was aware of his
disability earlier than is indicated in the final agency decision and
did not provide evidence showing that an adequate investigation was done
regarding some of his EEO claims.2 His remaining contentions restate
the beliefs and arguments he put forth during the Agency investigation of
his allegations.3 The Agency’s brief in opposition to Complainant’s
appeal restates the Agency’s reasons for the actions alleged to be
discriminatory.
In large part, both parties’ contentions speak to their respective
cases-in-chief and, as such, will not be addressed separately as they
are inherently included in the “Analysis and Findings” section below.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de
novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at Chap. 9, § VI.A. (Nov. 9, 1999) (explaining that the de novo
standard of review “requires that the Commission examine the record
without regard to the factual and legal determinations of the previous
decision maker,” and that EEOC “review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission’s
own assessment of the record and its interpretation of the law”).
ANALYSIS AND FINDINGS
A. Harassment
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, religion or
prior EEO activity is unlawful, if it is sufficiently patterned or
pervasive. Wibstad v. United States Postal Service, EEOC Appeal
No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d
1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris
v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 3, 9 (Mar. 8, 1994).
A single incident or group of isolated incidents will 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 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, 510 U.S. 17, 21 (1993).
Complainant alleges that he was subjected to harassment on the bases of
his race, disability, and prior EEO activity. To establish a claim of
hostile environment harassment, Complainant must show that:
(1) he is a member of a statutorily protected class;
(2) he was subjected to harassment in the form of unwelcome verbal or
physical conduct involving the protected class;
(3) harassment complained of was based on the statutorily protected
class;
(4) the harassment affected a term or condition of employment and/or
had the purpose or effect of unreasonably interfering with the work
environment and/or creating an intimidating, hostile, or offensive work
environment; and
(5) there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d 897, 903-05 (11th Cir. 1982);
see also Flowers v. Southern Reg'l Physician Serv. Inc., 247 F.3d
229 (5th Cir. 2001); Fox v. General Motors Corp., 247 F.3d 169 (4th
Cir. 2001). Humphrey v. United States Postal Serv., EEOC Appeal
No. 01965238 (Oct. 16, 1998).
Below are the Agency’s articulated responses to each incident of
alleged harassment, ordered and numbered to reflect the layout of the
allegations as listed above. It should be noted that, to better reflect
the allegations as listed above, the responses do not reference the
Agency itself; instead they reference the individuals who provided the
information on the Agency’s behalf.4
1. Mr. F stated that while he does not recall the specific incident
underlying his statement, his utterance of the term “you people”
was intended to refer to Complainant’s and his co-worker’s job or
position, not their race.5 ROI, Aff. B-5, at 4-8.
2. Mr. SY did not recall receiving Complainant’s email but noted that
as the Associate Director of the facility at the time, he is inundated
with 150 emails daily. He further stated that he would not have ignored
Complainant’s email on the basis of Complainant’s protected EEO
status. Id., at Aff. C-9, at 9.
3. Mr. JY stated that an email about a Congressperson’s visit would
only have been disseminated to supervisors and because Complainant was
not a supervisor, he did not receive the email. Id., at Aff C-9, at 1.
4. Mr. F stated that Complainant was not included in the meeting regarding
artificial limbs because he was not a supervisor and had no say in the
matters under discussion. He acknowledged stating to research officials
during the meeting that Complainant did not have a degree in the field
of prosthetics prompting those officials to request a more credentialed
person to join their research group. Id. at B-5, at 15-19.
5. Mr. JB denied that Complainant had to leave the work area during the
Congressperson’s visit. He stated that Complainant appeared nervous
about the visit, so he gave Complainant the option of attending or not.
Id. at B-4, at 8-13. Mr. F stated that Complainant chose not to attend.
Id. at B-5, at 9-15. Mr. JB further denied that Complainant was the
only one with knowledge of Complainant’s work in prosthetics, stating
that he, too, was knowledgeable of Complainant’s work in this area.
Id. at B-4, at 8-13.
6. Mr. JB did not recall indicating that Complainant was not at work
when Complainant was in fact at work but admitted that he inquires as
to an employee’s whereabouts when they cannot be located and patients
need to be seen. Id., at B-5, at 13-15.6
7. Mr. JB stated that he may have been on vacation when the incident
between Complainant and Mr. K occurred and noted that he was never
informed of the matter. Mr. F recalled being told about this concern
causing him to spend time ensuring that Complainant and Mr. K were
separated. Mr. F further stated that eventually he assigned Mr. K other
duties to limit his contact with Complainant. Id. at B-5, at 22-27.
8. Mr. SY recalled the matter alleged in this allegation, and stated that
he asked both employees, Complainant and Mr. K, to give him their sides
of the story. He stated that Mr. K responded while Complainant did not.
Mr. SY stated that Complainant’s non-response caused him to turn the
matter over to Mr. JB. Id. at C-9, at 1.
9. Mr. JB stated that once the matter was turned over to him, he
reassigned Mr. K other duties pursuant to instructions given to him by
Mr. F (see 7 above). Id. at B-4, at 18-20.
10. Mr. JB stated that the time and attendance memorandum was sent to
all employees to remind them of the Agency’s procedures regarding this
issue and was not targeted at any individual in particular. Id. at B-4,
at 22. Mr. F confirmed Mr. JB’s statements. Id. B-5, at 27-29.
12. Mr. F stated that Complainant was never told not to engage in the
fabrication process for making artificial limbs but was told that when
a patient arrived he was to stop his fabrication duties, take care of
the patient, and resume fabricating thereafter. Mr. F stated that this
instruction was consistent with his “patient first” management style.
13. Mr. F admitted to reviewing Complainant’s medical records.
He stated that he reviewed those records because Complainant had
requested that another employee order for him a knee brace and Mr. F
needed determine whether it was appropriate for the Agency to order
Complainant a brace for his knee. He further stated that once looking at
Complainant’s medical records, he determined that it was appropriate to
order Complainant a brace, and therefore the brace was ordered. Mr. F
noted that the Agency’s security and privacy officials noted that his
conduct was a legitimate exercise of his authority. Id. at B-5, at 32-36.
14. Mr. F and Mr. JB stated that Complainant, along with all employees,
was asked to return his work-at-home equipment because a heightened
sense of security was being exercised at the Agency in light of computer
equipment that had been stolen from the Agency in the Washington,
D.C., area.
15. Mr. JB and Mr. F stated that Complainant and other employees were
monitored in a manner consistent with their day-to-day supervision of the
job site and work issues; they denied conspiring to monitor Complainant.
Id. at B-5, at 40-44; B-4, at 33-35.
16. Mr. JB denied asking Complainant to sign a blank appraisal form though
he did acknowledge having Complainant sign a statement of awareness
which indicated the elements upon which Complainant would be evaluated
for the upcoming year. Mr. JB noted that all employees were asked to
sign the form. Id. at B-4, at 37-43.
17. Mr. JB further denied that Complainant’s signature had been forged
on his performance appraisal for the ratings period spanning April 1,
2003, to March 31, 2004. He clarified that the document in question was
a position description of Complainant’s job with Complainant’s name
written on it. Id.
18. Mr. F admitted that he placed Complainant on sick leave certification
but stated it was an error due to the fact that Mr. F. did not have all
the facts surrounding Complainant’s presence at work when Complainant
was scheduled to be out on sick leave. He stated that once he learned
those facts, he rescinded the certification requirement. Id. at B-5,
at 46-47.
The explanations giving by the various management officials are
supported by the record, and Complainant has offered no evidence
tending to prove that these reasons are unworthy of belief. In those
cases where management denied that the alleged discriminatory behavior
or comments occurred, Complainant has not offered evidence tending to
prove otherwise. Based on the responses submitted by the Agency, and the
lack of information in the file to rebut it, we find that Complainant
has failed to prove that the events about which he complained occurred
because of his membership in a protected class, and therefore find that
he failed to establish the third element of a harassment claim. Without
the existence of all five elements of harassment as enunciated above,
Complainant's harassment allegation fails.
B. Disparate Treatment
Complainant also alleged he was treated differently than others outside
his protected groups (race, disability and/or reprisal) with respect
to allegations 11, 19-22, and 25. Specifically, he alleged he was
discriminated against when he was (11) not appointed to the Acting Chief
position; (19) denied leave on August 24, 2005; (20) issued a written
letter of counseling on January 30, 2006, and (21) another on February
23, 2006; (22) assigned to perform the duties of an Orthotic Fitter;
and (25) not selected for the position of Orthotist/Prosthetis, GS-12,
pursuant to Vacancy Announcement 06-43-NZ.
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a disparate treatment case
is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-03 (1973). 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. Second, the Agency must articulate a legitimate,
nondiscriminatory reason(s) for its actions. Texas Dep't of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). Third, if the Agency
is successful, then Complainant must prove by preponderant evidence
that the legitimate reason proffered by the Agency was a pretext for
discrimination. Id. at 256. We will assume Complainant has established
a prima facie case of discrimination with respect to all three bases.
We now turn our attention to whether the Agency articulated a legitimate,
nondiscriminatory reason for the actions alleged to be impermissible
under a disparate treatment theory of discrimination. See Burdine,
450 U.S. at 253. The Agency stated Complainant was not appointed to the
Acting Chief position in favor of Mr. GM because Mr. GM had substantial
management experience at the Agency, making him the logical choice.
The Agency stated that Complainant was denied leave on August 24, 2005,
that he had plan to use to attend an new artificial limb technology
training course on August 26, 2005, because Complainant submitted the
request on insufficient notice, depriving management of time to make a
staffing adjustment.
The Agency stated that Complainant was issued letters of counseling
on January 30, 2006, and February 23, 2006, because he had been rude
to patients and their families during telephone conversations, which
prompted those individuals to contact other Agency officials and their
Congressperson to complain. The Agency noted that Complainant failed
to give an acceptable account of what happened during the telephone
encounters. The Agency further stated that Complainant and his co-workers
were required to perform orthotic fitter work, which is a front-desk
assignment, because the Agency needed them to perform that service in
a rotating capacity in order to serve patients’ needs and fill in for
their colleagues who were on leave, at lunch, or out of the office.
Finally, the Agency stated that Complainant was not selected for the
position of Orthotist/Prosthetist, GS-12 because the individual selected
(Selectee) was deemed better qualified for the vacancy. Specifically,
the Agency stated that Selectee had been a certified Orthotist/Prosthetist
for over seven years, had more than 30 years of overall experience in
the field (which included private sector experience relating to high
technology devices such as myoelectics, the Ossure knee, and the C-leg),
had previously owned and operated several prostheses facilities, had
authored several articles in the field, and had significant management
experience. The Agency noted that Complaint only had four years of
overall experience in the field and though certified in prostheses,
had not been certified in orthotics. We find the Agency’s reasons
are legitimate and nondiscriminatory.
In the final step in the analysis, the inquiry moves to consideration
of whether Complainant carried his burden to demonstrate pretext. In
order to prevail on his claim of discrimination, Complainant must show,
through probative and preponderant evidence, that the Agency's articulated
reasons were a pretext for discrimination. Complainant can do this by
showing that the Agency's explanations are unworthy of credence and
that its actions were influenced by legally impermissible criteria,
i.e., animus toward him because of his race or disability, or for
engaging in prior EEO activity. Complainant presented no such evidence.
Regarding the Orthotist/Prosthetist selection, Complainant did provide
a statement from a Human Resource official (HRO) who stated that there
was some concern that the questions asked during the interview were not
proper because they focused on qualifications rather than performance, as
required by Agency policy. Id. at Aff. C-9, at 6. While the selecting
official’s questions may have been something other than what Agency
guidance requires, there is no evidence the questions themselves were
discriminatory or guided by discriminatory motives.
We note that the HRO stated that while he could not affirmatively say
that management discriminated against Complainant due to his race,
disability, or prior EEO activity, he did state that he believed the
selecting officials were trying to exclude Complainant from selection.
Id. Although the HRO stopped short of asserting that the Complainant’s
non-selection was discriminatory, we feel compelled to note that mere
speculation, without probative evidence, will not suffice to demonstrate
pretext. See Nagle v. Dep’t of the Treas., EEOC Appeal No. 0120092440
(Feb. 4, 2011). We find that Complainant failed to meet his burden of
establishing pretext. Thus, his disparate treatment claim fails.
C. Reasonable Accommodation
Under the Commission's regulations, an agency is required to make
reasonable accommodation of the known physical and mental limitations
of a qualified individual with a disability unless the agency can show
that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9.
For purposes of further analysis we will assume, without so finding,
that Complainant is an individual with a disability. We note there is no
evidence indicating that the Agency was untruthful as to when it learned
of Complainant’s asserted disability. Further, when the Agency was made
aware of Complainant’s condition is not dispositive to the outcome of
this case, because disability did not rise as an issue in this complaint
until Complainant submitted a reasonable accommodation request on November
14, 2005, at which point the Agency invoked its reasonable accommodation
process and sought information from Complainant to determine if he was
entitled to an accommodation, and if so, what accommodation would be
most appropriate.
The evidentiary record reveals that Complainant requested that Mr. JB
allow Complainant to perform prosthetic duties only because the orthotic
fitter part of his job aggravated his knee condition. In the request,
Complainant stated that he could limit the amount of time he spent
squatting, kneeling, and bending when working on patients with amputated
limbs if he did not have to perform orthotic responsibilities. Id. at
C-7, at 65-68.
Mr. JB completed his portion of the Agency’s reasonable accommodation
request form and referred the matter to Human Resources. On December
28, 2005, the Human Resource official assigned to the case, Ms. MS,
sent Complainant a letter requesting more medical documentation of
the condition. On February 21, 2006, Complainant provided medical
documentation from the Florida Orthopaedic Institute (FOI) which stated
that Complainant should avoid “squatting, lunges, prolonged standing,
and walking at work. [Complainant] has also been instructed to wear his
[knee] brace when he needs to sit while working or standing for any length
of time.” Id. at C-7, at 100. On March 9, 2006, he submitted more
information from FOI stating that Complainant “may work his regular
job with the following restrictions: no repetitive use of …left lower
extremity, no kneeling, bending, squatting, stooping, or crawling, no
prolonged standing or walking…[Complainant] has a brace that he has
been instructed to wear on an as needed basis.” Id. at C-7, at 99.
As an accommodation, Complainant requested to be relieved completely from
performing duties related to the orthotic aspect of his job. However,
we find that Complainant’s orthotic responsibilities were an essential
function of his job. Complainant’s position description indicates
that his official job title was Orthotist/Prosthetist, GS-667-11, and
a fair reading of the document makes clear that any incumbent serving
the position would be expected to practice in two scientific/medical
fields; (1) prosthetics, which focused on artificial device extensions to
replace missing body limbs; and (2) orthotics, which focused orthopedic
devices designed to support or correct the function of a body limb or
the torso. See id. at C-2, at 2-4. Because Complainant stated that he
could not perform the orthotic aspect of his job, we find that there
was no accommodation available that would have allowed him to perform
the essential functions of his position.
Because Complainant could not be accommodated in the position he
encumbered, the Agency was required to consider the availability of a
reassignment as an accommodation. In such situations, however, it is
Complainant's burden to identify a vacant funded position for which
he was qualified and into which he could have been reassigned. EEOC
Enforcement Guidance on Reasonable Accommodation and Undue Hardship
Under the Americans With Disabilities Act, EEOC Notice No. 915.002
(rev. Oct. 17, 2002); see also Interpretive Guidance on Title I of the
Americans With Disabilities Act, Appendix to 29 C.F.R. Part 1630, at §
1630.2(o). Complainant identified no such position. We therefore find
that he has failed to establish he was denied a reasonable accommodation.7
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we hereby AFFIRM the
Agency’s final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this
case if the Complainant or the Agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (Nov. 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official Agency
head or department head, identifying that person by his or her full
name and official title. Failure to do so may result in the dismissal
of your case in court. “Agency” or “department” means the
national organization, and not the local office, facility or department
in which you work. If you file a request to reconsider and also file a
civil action, filing a civil action will terminate the administrative
processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the
request and the civil action must be filed within the time limits as
stated in the paragraph above (“Right to File a Civil Action”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 27, 2011
Date
1 The Agency consolidated all three complaints for processing, thus,
this decision does not identify the allegations by complaint number and
renumbers them in a manner different than what is found in the Agency’s
final decision and other complaint documents. It is noted that the
Agency dismissed some of Complainant’s allegations, which Complainant
does not challenge on appeal. We will not review those matters, as we
exercise our discretion to review only the issues specifically raised
in Complainant’s appeal. See Equal Employment Opportunity Commission
Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-10
(Nov. 9, 1999).
2 We note that the ROI speaks for itself with regard to whether the
Agency adequately investigated Complainant’s claims. Upon review,
we find that the ROI is sufficient to support a reasoned determination
of Complainant’s claims.
3 Complainant also contends that he was constructively discharged and
seeks as a remedy reinstatement to his former position. Complainant
was granted disability retirement in July 2006 but did not raise his
constructive discharge claim until this appeal. It is inappropriate
for complainant to raise a new issue for the first time on appeal.
See Hubbard v. Dep’t of Homeland Security, EEOC Appeal No. 01A40449
(Apr. 22, 2004). Therefore, we will not address this matter further.
4 It should also be noted that allegations 11, 19-22, and 25 will be
examined using a disparate treatment analysis rather than the harassment
standards as those allegations concern discrete employment actions
executed by Complainant’s supervisors rather than concerns regarding
their comments and behavior. Allegations 23-24 will be analyzed using
the Rehabilitation Act’s reasonable accommodation standards because
those allegations essentially regard whether Complainant was denied upon
request a workplace accommodation for his knee arthritis.
5 The Hispanic co-worker stated that he did not interpret Mr. F’s
comments the same way as Complainant, and noted that he believed
Complainant did not approve of Mr. F’s style of management. ROI, C-9,
at 4.
6 Mr. F noted that Complainant was once found to be absent without leave,
prompting a disciplinary action which was upheld despite Complainant’s
rebuttals. ROI, at Aff. B-5 at 20-22.
7 Further, to the extent that Complainant alleged that he was subjected
to a hostile work environment with respect to allegations 11, and 19-25,
we find that under the standards set forth in Harris v. Fork-lift Systems,
Inc., 510 U.S. 17 (1993), those allegations must fail. See Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002
(Mar. 8, 1994). A finding that Complainant was subjected to a hostile
work environment is precluded by our determination that Complainant
failed to establish that any of the actions taken by the Agency were
motivated by discriminatory animus. See Oakley v. U.S. Postal Serv.,
EEOC Appeal No. 01982923 (Sept. 21, 2000).
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01-2008-2553
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120082553