01A05518
09-30-2003
Raymond S. Mallory, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.
Raymond S. Mallory v. Department of the Navy
01A05518
09-30-03
.
Raymond S. Mallory,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A05518
Agency Nos. 98-62204-022, 98-62204-065
Hearing No. 340-A0-3638X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms the agency's final decision.
ISSUES PRESENTED
Whether complainant was discriminated against on the bases of disability
(rheumatoid arthritis, stress), age (D.O.B. 8/2/52), and reprisal for
prior EEO activity when he was allegedly subjected
to disparate treatment (given hazardous and menial assignments, denied
privileges, etc.) and harassment (derogatory remarks, referral for
counseling, etc.). Complainant also alleged that he was discriminated
against when his supervisor threatened him with disciplinary action if
he did not attend his annual physical examination.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Utilities Systems Operator, WG-5409-09, at the agency's Facilities &
Services Division, Marine Corps Logistics Base in Barstow, California.
Complainant sought EEO counseling and subsequently filed two formal
complaints on May 21, 1998 and July 3, 1998.
Complainant alleged numerous incidents to support his allegation of
discrimination.<1> First, complainant stated that, on August 22,
1997, he observed his supervisor (S-1) doing his homework during
work hours. On September 15, 1997, complainant observed a coworker
watching television during work hours, but complainant was not allowed
to do the same. On October 27, 1997, when complainant's mother passed
away in Las Vegas, S-1 stated, �Did you roll the dice on your mother's
coffin,� �You 10-point vets are such wusses with [death],� and �military
police, get your ass up there or I'll remove you.� On February 26, 1998,
S-1 said that complainant should join his mother. Complainant further
asserted that, in general, he was constantly threatened with disciplinary
actions or removal either by S-1 or his �minions.�
Complainant further contended that he was asked to perform manual labor
(pull weeds, rake, shovel, etc.) while similarly situated employees were
not asked to perform such tasks. He alleged that the manual labor was a
form of punishment for speaking out on safety, nepotism, and favoritism
issues.<2>
On March 5, 1998, complainant was not given keys to S-1's office,
while three of his coworkers were given keys. On December 6, 1997,
January 17, 1998 and February 15, 1998, complainant was forced into
hazardous areas such as an elevator shaft during a rainstorm, while his
coworkers were not, and he was threatened with removal if he did not
agree to work in such hazardous areas. Complainant again asserted that
S-1 constantly �chewed him out� for speaking out about safety, nepotism,
and favoritism.<3>
Since December 5, 1997, S-1 forced complainant to clean up a coworker's
tobacco spit and spit cup. S-1 allowed that same coworker to come to work
late on February 5, 1997, October 28, 1997, December 11, 1997, January
15 and 29, 1998, and February 24, 1998, and complainant asserted that
S-1 gave other Operators 59 minutes to arrive at work, while complainant
was often denied that privilege. Complainant further contended that
his coworkers received annual or bereavement leave �hassle free,� while
complainant was not afforded that privilege.
Complainant alleged that, on February 14, 1998, May 31, 1998, and August
13, 1998, S-1's brother was allowed to spend his shift collecting cans
and �dumpsite diving,� while complainant was not. On March 17, 1995,
May 1995, and December 5 and 6, 1997, complainant was constantly insulted
and harassed about being a 10-point veteran. In August through November
1997, complainant was forced to chip lead-based paint and clean-up
messes left by a coworker, while no one else was required to do so.
On February 26, 1998, S-1 threatened complainant with disciplinary
action if complainant failed to attend his annual physical pursuant to
the agency's Occupational Medical Surveillance Program. In addition,
complainant alleged that he was the only employee required to come in
on his day off to submit to the annual physical examination.
On January 26, 1998, and February 6, 1998, complainant was forced to work
seven days a week without a day off or forced to work overtime when he was
on jury duty. He was also denied a shift change for jury duty. On May
23, 1998, S-1 referred complainant to the Civilian Employees Assistance
Program (CEAP) for counseling after a discussion during a staff meeting.
At the conclusion of the investigation, on May 4, 1999, complainant was
informed of his right to request a hearing before an EEOC Administrative
Judge (AJ) or alternatively, to receive a final decision by the
agency. Complainant failed to respond within the time period specified
in 29 C.F.R. � 1614.108(f). On May 16, 2000, complainant, through
counsel, requested a hearing before an AJ because the agency failed to
issue a decision. On July 13, 2000, the AJ denied the request for a
hearing because it was untimely submitted. The AJ determined, however,
that the agency was in clear violation of 29 C.F.R. � 1614.110 when it
failed to timely issue its FAD. The AJ therefore ordered the agency to
�expeditiously� issue its FAD.
In its FAD, dated July 31, 2000, the agency concluded that complainant
established a prima facie case of reprisal discrimination. With respect
to disability discrimination, the agency found that complainant failed
to show that he was substantially limited in a major life activity.
As to complainant's claim of disparate treatment, the agency found that,
assuming arguendo that complainant had established a prima facie case
of age and disability discrimination, it had articulated legitimate
nondiscriminatory reasons for its actions. The agency concluded that
complainant failed to show that its articulated reasons were pretext
for discrimination. With respect to complainant's claim of harassment,
the agency found that the incidents complainant identified were not
patterned and pervasive, and complainant failed to show that they were
related to his age, disabilities, or reprisal.
On appeal, complainant contends that the investigation was hastily done
and a ruse. He asserts that the EEO investigator failed to contact all
of his witnesses. Complainant further maintains that the agency used
his disability against him, and that S-1, his brother, and his friends
provided the EEO investigator with false testimony. The agency makes
no statement on appeal.
ANALYSIS AND FINDINGS
Disparate Treatment
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie 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; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency
has met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that
the agency acted on the basis of a prohibited reason. St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the
third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. United States
Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Serv.,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
For the purposes of this decision, the Commission assumes that
complainant established a prima facie case of age, disability, and
reprisal discrimination. Therefore, the burden shifts to the agency
to articulate legitimate, nondiscriminatory reasons for instructing
complainant to perform hazardous and menial assignments and denying
complainant privileges. With respect to complainant's claim that S-1
required him to complete hazardous and menial assignments, S-1 stated the
following: he required all his employees to hoe weeds and shovel sand;
he did not direct complainant to chip the old paint in question, rather
complainant suggested that it be done, wore a dusk mask while doing so,
and only chipped the paint for two days; he required the employee who used
the spit cup to clean up the cup, not complainant; and he never ordered
complainant to work in a wet elevator shaft, and the log indicated that
it did not rain on one of the two days complainant alleged that he worked
under such conditions. With respect to complainant's claim that he was
denied privileges, S-1 asserted that: all Operators were allowed to watch
television in building 325 and 610 on weekends or on swing or graveyard
shifts; he did not provide complainant with keys to his office because
complainant never requested to substitute for S-1, and though S-1 asked
if complainant would like to substitute for him, complainant declined
the offer; he did not deny complainant administrative time to see his
doctor for a blood sample or annual or sick leave on any occasion; he
did not allow any employee to be tardy; and he required all employees on
jury duty to work on Saturdays. Finally, S-1 contended that: he did not
make derogatory comments to complainant regarding his mother's death,
he did not say that complainant should join her, nor did he insult
complainant for being a 10-point veteran; and he referred complainant
to CEAP because complainant was loud and obnoxious and would not allow
S-1 to talk during a staff meeting.
Since the agency articulated legitimate, nondiscriminatory reasons
for its actions, the burden returns to complainant to demonstrate that
the agency's articulated reasons were pretext for discrimination.
Complainant asserted that S-1 exhibited favoritism, nepotism, and
dislike for veterans, and that he treated complainant differently
than his coworkers because complainant reported safety violations.<4>
We note, however, that favoritism that is not based on an employee's
membership in a protected class is not actionable under the ADEA or
the Rehabilitation Act. Here, the record reflects that some of the
coworkers complainant alleged were favored by S-1 were members of
complainant's protected classes. In addition, the Commission lacks
jurisdiction to adjudicate complainant's claims that he was subjected to
disparate treatment and harassment due to nepotism, veterans preference,
or whistleblowing. For these reasons, we find that complainant failed
to show that the agency's articulated reasons were pretext for age,
disability, or reprisal discrimination. Accordingly, the Commission
concludes that complainant has failed to prove that the agency acted on
the bases of age, disability, or reprisal discrimination with respect
to his claim of disparate treatment.
Harassment
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability or religion is unlawful
if it is sufficiently patterned or pervasive. Garretson v. Department
of Veterans Affairs, EEOC Appeal No. 01945351 (April 4, 1996); McKinney
v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985). The Commission's
Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment
by Supervisors, EEOC Notice No. 915.002 (June 18, 1999) identifies two
types of such harassment: (1) harassment that results in a tangible
employment action; and (2) harassment that creates a hostile work
environment. Based on the facts of this case, we will analyze this matter
as an allegation of harassment that creates a hostile work environment.
In order for harassment to be considered as conduct in violation of
the regulations that the Commission enforces, it must be pervasive
or severe enough to significantly and adversely alter the conditions
of the victim's employment and create an abusive working environment.
Harris v. Forklift Systems, Inc., 114 S.Ct. 367 (1993); see also McCleod
v. Social Security Administration, EEOC Appeal No. 01963810 (August 5,
1999). The conduct in question is evaluated from the standpoint of a
reasonable person, taking into account the particular context in which
it occurred. Highlander v. K.F.C. National Management Co., 805 F.2d 644
(6th Cir. 1986). The Commission notes that unless the conduct is very
severe, a single incident or group of isolated incidents will not be
regarded as discriminatory harassment. Walker v. Ford Motor Co., 684
F.2d 1355, 1358 (11th Cir. 1982).
In the present case, the Commission finds that complainant has not
established that he was harassed on the bases of his age, disability,
or reprisal. The incidents at issue were not so severe that they
significantly and adversely altered the conditions of complainant's
employment. Furthermore, there is no indication in the record that S-1's
actions were motivated by a discriminatory animus towards complainant's
protected bases. Instead, the record reflects that complainant believed
that S-1 harassed him due to favoritism, nepotism, a dislike of veterans,
and complainant's reporting of safety violations. Accordingly, the
Commission finds that complainant has failed to prove by a preponderance
of the evidence that he was subjected to harassment on the bases of age,
disability, or reprisal.
Annual Physical Examination
As previously noted, complainant alleged that he was discriminated against
when his supervisor threatened him with disciplinary action if he did
not attend his annual physical examination. The record reflects that,
by letter dated February 26, 1998, S-1 rescheduled complainant for his
annual physical examination pursuant to the agency's Occupational Medical
Surveillance Program. Because complainant failed to appear for five prior
scheduled examinations, S-1 informed complainant that appropriate action,
to include disciplinary action, would be taken against him if he failed
to take the examination.
The Rehabilitation Act was amended in 1992 to apply the standards in the
Americans with Disabilities Act (ADA) to complaints of discrimination by
federal employees or applicants for employment. See Enforcement Guidance:
Disability-Related Inquiries and Medical Examinations of Employees under
the Americans with Disabilities Act (July 27, 2000) (July 2000 Guidance);
Enforcement Guidance on the ADA and Psychiatric Disabilities (March 25,
1997) (March 1997 Guidance); and Enforcement Guidance: Preemployment
Disability-Related Questions and Medical Examinations Under the ADA
(October 10, 1995). Because the restrictions on employers with regard
to disability-related inquiries and medical examinations apply to all
employees, and not just to those with disabilities, it is not necessary
to inquire whether the employee is a person with a disability. July 2000
Guidance, p. 3.
The Rehabilitation Act places certain limitations on an employer's ability
to make disability-related inquiries or require medical examinations
of employees. An employer may make disability-related inquiries or
require a medical examination of an employee only if the inquiry or
examination is job-related and consistent with business necessity.
March 1997 Guidance, p. 15. Employers are also permitted to conduct
periodic physicals to determine fitness for duty or other medical
monitoring if such physicals or monitoring are required by medical
standards or requirements established by Federal, State, or local
law that are consistent with the ADA in that they are job-related and
consistent with business necessity. These standards include the health
standards promulgated pursuant to the Occupational Safety and Health Act
of 1970, the Federal Coal Mine Health and Safety Act of 1969, or other
similar statutes that require that employees exposed to certain toxic
and hazardous substances be medically monitored at specific intervals.
July 2000 Guidance, Question 21.
On May 16, 2003, the Commission issued an interim order to the agency
directing that it perform a supplemental investigation in order to provide
evidence regarding the need for conducting annual physical examinations
for Utilities Systems Operators, and its authority to do so. The agency
was also directed to indicate the type of medical information it sought
in conducting the examinations and whether the Utilities Systems Operator
position affected the public safety.
In response, the agency provided documentation indicating that, in
addition to internal regulations, it is obligated to conduct medical
surveillance pursuant to the Occupational Safety and Health Act of 1970.
That statute provides, in pertinent part, that a medical surveillance
program shall be instituted by the employer for employees who are or
may be exposed to hazardous substances or health hazards at or above
the permissible exposure limits. See 29 C.F.R. � 1910.120(f)(2)(i).
The agency also indicated that, with respect to complainant, the following
tests and biological monitoring were required: audiogram or hearing,
vision, chest x-ray due to past exposure to asbestos, pulmonary function,
Hep A vaccination, and a physical examination. According to the agency,
the goal is to protect workers who are exposed or potentially exposed
to hazardous agents in the workplace by detecting adverse effects at an
early and reversible stage.
Finally, the agency referenced the complainant's position description,
which provides, in pertinent part, that the nature of the job is such
that incumbents are �constantly adjacent to materials that have been
classified as toxic, ignitable, corrosive, carcinogenic, teratogenic,
or mutagenic.� We find that the position description establishes that
the Utilities Systems Operator position affects the public safety in that
the incumbent is required to operate and maintain two California drinking
water systems, i.e., performing preventive and minor maintenance, repairs
and adjustments to piping, and groundwater wells. Also, the incumbent
must operate and maintain three swimming pools, two domestic wastewater
treatment plants and collection systems, and two industrial wastewater
treatment plants.
In the present case, the agency required complainant to submit to
an annual physical examination pursuant to its Occupational Medical
Surveillance Program. We conclude that the agency met its burden of
showing that the examination was job-related and consistent with business
necessity. Accordingly, we find that the examination was not a violation
of the Rehabilitation Act.
CONCLUSION
Accordingly, after a careful review of the record, including arguments
and evidence not specifically addressed in the decision, we AFFIRM the
agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to
file a civil action. Both the request and the civil action must be
filed within the time limits as stated in the paragraph above ("Right
to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___09-30-03_______________
Date
1 On December 2, 1998, the agency dismissed
nine of complainant's allegations on the bases that these incidents
were untimely reported or moot. See 29 C.F.R. � 1614.107(a)(2) and
(5). The record reflects that complainant did not appeal the agency's
dismissal.
2 S-1 assigned the manual labor to complainant from February 5, 1997
through June 19, 1998 at building 580, and on February 7, 1997, August 1,
1997, January 28, 1998, and May 14, 1998 at building 413.
3 Complainant stated that he was admonished on November 6, 13, and 20,
1997, December 4 and 11, 1997, January 15 and 29, 1998, and May 21, 1998.
4 We note that the Office of Special Counsel has authority to investigate
and prosecute prohibited personnel practices, whistleblower disclosures,
and other activities prohibited by civil service laws, rules, and
regulations. See 5 U.S.C. � 4302(b)(8). Information on the Office of
Special Counsel can be found at www.osc.gov.