0120103354
07-20-2012
Michael J. Gundrum, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Michael J. Gundrum,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120103354
Hearing No. 480-2009-00242X
Agency No. DON-08-00243-01911
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's August 16, 2010 final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Engineering Draftsman in the Facilities Maintenance Division at the Marine Corps Recruit Depot in San Diego, California. Complainant has no use of his right hand and can only use his left hand to write. Complainant's duties included maintaining flat maps in a cabinet in his office and using them as reference materials for drawings that he developed. Several times a month, Complainant would receive a request for copies. Complainant would then go into the files, search through the drawings, find the requested drawing, and make copies of it.
In March 2008, while he was out on leave, the flat maps cabinets were moved out of Complainant's office and into the Archive Room so that new carpeting could be installed. Management later decided to keep the cabinets in the Archive Room to allow two additional employees to work in Complainant's office. Complainant's office was approximately 250 feet from the Archive Room. When he returned to work, Complainant asked his supervisor (S1) about moving the flat maps cabinets back into his office. S1 sought assistance from the Facilities Maintenance Manager and the Quality Control Manager for recommendations as to accommodations for Complainant. S1 suggested providing Complainant with a cart to assist him in carrying the Drawings.
On March 27, 2008, S1 sent Complainant a reasonable accommodation request form and asked him to return it by April 1, 2008. The next day, Complainant questioned the purpose of the form. S1 informed Complainant that the form was needed to obtain information which would facilitate the processing of his request for accommodation. On or about April 7, 2008, Complainant submitted an incomplete reasonable accommodation request form. On April 25, 2008, Complainant filed a grievance regarding the accommodation matter.
On May 19, 2008, Complainant filed a second request for reasonable accommodation with S1. On June 2, 2008, S1 informed Complainant that he was unable to grant Complainant's request to move the files back into his office as an accommodation as it would impose an undue hardship on the organization as the Agency needed the space for two additional employees. On June 16, 2008, Complainant attempted to set up a meeting with the Commanding General regarding his reasonable accommodation requests. The Labor Relations Specialist (LRS) informed Complainant that a meeting with the Commanding General was not appropriate and that if he had a complaint he should go through his chain-of-command or utilize the negotiated grievance process. LRS advised management to tell Complainant that he could not meet with the Commanding General and for him to utilize his chain-of-command or face the possibility of disciplinary action.
On June 18, 2008, S1 informed Complainant that he had returned an incomplete reasonable accommodation form as he had failed to identify his limitations, how those limitations would affect his ability to perform the essential functions of his position, and how moving the flat maps back to his office would help him perform his duties. As a result, S1 again denied Complainant's reasonable accommodation request, citing undue hardship and Complainant's incomplete reasonable accommodation request.
On August 4, 2008, Complainant's second-level supervisor (S2) met with Complainant to discuss work-related issues. S2 stated that during the meeting, Complainant was combative, lost his temper, raised his voice, and used obscene language. Complainant walked out of the meeting before it ended and stated that he was going out on stress leave and would go to the Commanding General before he left. S2 told Complainant that he was not going to see the Commanding General without first going through his chain of command. Nonetheless, Complainant went to the command suites and requested to see the Commanding General. The Deputy Assistant Chief of Staff and the Assistant Chief of Staff, who were in Complainant's chain of command, informed Complainant that he was not going to meet with the Commanding General. Witnesses stated that Complainant became argumentative and disrespectful and refused to leave. The Deputy Assistant Chief of Staff asked Complainant three times to leave the base before he finally followed his instructions. Complainant was subsequently suspended three days without pay for inappropriate conduct, using insulting and obscene language, failure to follow supervisory instruction, and delay in carrying out supervisory instructions.
On June 28, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him in reprisal for prior protected EEO activity when, on June 16, 2008, he was instructed not to go to the Commanding General without first engaging his supervisory chain of command.1
At the conclusion of the investigation, 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 (AJ). Complainant timely requested a hearing. The AJ held a hearing on September 17, 2009, and issued a decision on June 8, 2010.
In her decision, the AJ found that Complainant had not established a prima facie case of reprisal discrimination. Nonetheless, the AJ assumed arguendo that Complainant had established a prima facie of reprisal discrimination and determined that the Agency had articulated legitimate, nondiscriminatory reasons for its actions. Namely, after Complainant informed management that he was going to see the Commanding General regarding his request for a reasonable accommodation, Complainant was informed, several times, to use his chain of command and/or the grievance process. LRS informed Complainant that contacting the Commanding General would be inappropriate and that he should use the negotiated grievance process if he had a complaint or grievance. Complainant did not produce any evidence to show that what LRS told him was not protocol or advice that he would not have given to any other employee attempting to meet with the Commanding General. Nevertheless, Complainant chose to go to the Commanding General's suite in an attempt to meet with him. While there, Complainant caused a scene by being combative, losing his temper, raising his voice, using obscene language, and refusing to leave. Complainant's behavior resulted in his supervisors and, subsequently, the military police being called.
The AJ determined that Complainant failed to show that the Agency's actions were pretextual. As a result, the AJ found that Complainant had not been retaliated against as alleged. The Agency subsequently issued a final order adopting the AJ's decision. Complainant submitted no arguments or contentions on appeal.
STANDARD OF REVIEW
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. Nat'l Labor Relations Bd., 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-16 (Nov. 9, 1999).
ANALYSIS AND FINDINGS
Disparate Treatment/Reprisal
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).
Upon a review of the record, the Commission finds that the AJ's finding of no reprisal is supported by substantial evidence. The Commission concurs with the AJ's finding that the Agency articulated legitimate, nondiscriminatory reasons for its actions, as set forth above. Specifically, Complainant was instructed that he could not meet with the Commanding General because the Agency's policies required him to first bring his concerns through his chain-of-command. Instead, Complainant stormed into the Commanding General's office unannounced and without allowing those in his chain-of-command to resolve the situation. Complainant was subsequently suspended for inappropriate conduct, using insulting and obscene language, and failure to follow supervisory instruction.
The Commission finds that the AJ's determination that Complainant failed to establish pretext is supported by substantial evidence in the record. The record and facts gleaned at the hearing fail to prove any evidence purporting to show the Agency's actions were pretext for retaliatory animus. Accordingly, the Commission discerns no basis to disturb the AJ's decision.
CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the final Agency order because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
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
July 20, 2012
Date
1 In addition, Complainant alleged that he was discriminated against regarding the denial of reasonable accommodation. The Agency dismissed this claim for untimely EEO counselor contact. The Administrative Judge upheld the dismissal, but on the grounds the claim had been raised in a negotiated grievance procedure that permitted allegations of discrimination. Complainant does not challenge the dismissal on appeal; therefore, the Commission declines to address this matter further in the instant decision.
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0120103354
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013