0120072442
09-12-2007
Richard Gaytan, Complainant, v. Elaine Chao, Secretary, Department of Labor, Agency.
Richard Gaytan,
Complainant,
v.
Elaine Chao,
Secretary,
Department of Labor,
Agency.
Appeal No. 0120072442
Agency Nos. 03-09-129; 04-09-038; 04-09-050; 05-09-142
DECISION
On April 25, 2007, complainant filed an appeal from the agency's March
23, 2007, 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., 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 deemed timely and is accepted pursuant to 29
C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS
the agency's final decision.
At the time of events giving rise to this complaint, complainant worked as
a GS-09 Compliance Officer/Equal Opportunity Specialist in the agency's
Office of Federal Contract Compliance Programs (OFCCP)/Employment
Standards Administration (ESA) in Oakland, California. On July 2, 2003,
complainant filed an EEO complaint (subsequently amended and consolidated
with other formal complaints) alleging that he was discriminated against
on the bases of national origin (Mexican-American/Hispanic), sex (male),
disability (post traumatic stress disorder, carpal tunnel syndrome),
and in reprisal for prior protected EEO activity [arising under Title
VII and the Rehabilitation Act] when:
1. The agency subjected complainant to a hostile work environment by:
denying him the same support, training, and equipment received by other
employees; instructing other employees not to work with or assist him;
having false and misleading statements made about his performance; denying
him a requested reasonable accommodation on May 9, 2003; issuing him a
counseling memorandum on October 29, 2003 concerning leave restriction;
issuing him a memorandum on October 30, 2003 concerning performance;
failing to promote him to the GS-11 level on December 3, 2003; and not
addressing reasonable accommodation requests;
2. On or around July 24, 2004, he was denied reasonable accommodations
(flexi-place and a new computer keyboard);
3. Complainant was subjected to a hostile work environment when, on
August 26, 2004, during a meeting with a union official, the Acting
District Director (ADD) became furious, lunged half-way out of her chair
toward complainant, pointed her finger at complainant and threatened to
write him up for being "out of control"; and on August 27, 2004, the ADD
chastised complainant in front of a co-worker regarding complainant's
work on a NORI and Investigative Report to discredit complainant and
provoke a negative reaction; and,
4. Complainant was terminated from his GS-09 equal opportunity specialist
position on September 27, 2004.1
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant's request, the agency issued a final agency decision (FAD)
pursuant to 29 C.F.R. � 1614.110(b) concluding that complainant failed
to prove that he was subjected to discrimination as alleged.
The FAD found that complainant did not make out a prima facie case as
to the allegations of denied support, training, or equipment because he
was unable to demonstrate that similarly situated individuals received
training or equipment that he did not. The FAD found further than
even assuming that complainant had established a prima facie case of
discrimination, he failed to demonstrate that the agency's articulated
nondiscriminatory reason for any difference in treatment, i.e., that
budget cuts triggered changes in training delivery methods, was a pretext
for discrimination.
As to complainant's claims that he was subjected to discrimination when
the agency issued him a counseling memorandum outlining leave restrictions
and a performance memorandum, the FAD found that management had asserted
legitimate nondiscriminatory reasons for its actions. As to the leave
restrictions, the FAD found that the memorandum was issued because,
although complainant had been previously orally counseled concerning
proper leave procedures, he had not followed those procedures and had,
on two occasions, taken leave with either no or insufficient notice.
As to the performance memorandum, the FAD found that complainant had not
shown that the proffered reason for the memorandum, his poor performance,
was a pretext for discrimination.
The FAD additionally found management's explanation, that complainant
was denied a career ladder promotion because of his poor performance,
to be legitimate, and that the failure to promote complainant was
not motivated by discrimination. The FAD found that the proffered
reason for complainant's termination, i.e. his continued failure to
perform adequately despite repeated coaching and counseling, was a
nondiscriminatory reason for his discharge that complainant had not
shown to be a pretext for discrimination. The FAD then found that the
investigative record showed that the incidents identified by complainant
did not rise to the level of severe or pervasive harassment that could
constitute a hostile work environment.
Finally, the FAD found that complainant was not entitled to a
reasonable accommodation under the Rehabilitation Act because he had
not established that he is a qualified individual with a disability.
It also found that even were he considered to have an actual disability
under the Rehabilitation Act, the agency had satisfied its obligation
to accommodate him by providing him with assistive devices and agreeing
to implement Job Accommodation Network website suggestions.
On appeal, complainant, through counsel, contends that the record evidence
shows that he has been subjected to illegal discrimination. In response,
the agency requests that we affirm the FAD. 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 EEOC Management Directive 110, Chapter 9, �
VI.A. (November 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").
Hostile Work Environment
Based on the standards set forth in Harris v. Forklift Systems, Inc.,
510 U.S. 17 (1993), in order to prevail on a claim of harassment,
complainant must prove that: (1) she was subjected to harassment that
was sufficiently severe or pervasive to alter the terms or conditions
of employment and create an abusive or hostile environment; and (2)
the harassment was based on her membership in a protected class.
See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on
Harris v. Forklift Systems, Inc. at 3, 6; Cobb v. Department of the
Treasury, EEOC Request No. 05970077 (March 13, 1997). The evidence in
the record is insufficient to support a finding that management's actions
towards complainant were based on his membership in any protected group.
See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on
Harris v. Forklift Systems, Inc. at 3, 6.
Disparate Treatment
To prevail in a disparate treatment claim, complainant must satisfy the
three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially
establish a prima facie case by demonstrating that he or she was subjected
to an adverse employment action under circumstances that would support
an inference of discrimination. Furnco Construction Co. v. Waters, 438
U.S. 567, 576 (1978). Proof of a prima facie case will vary depending
on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804
n. 14. 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). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993). Here, assuming arguendo
that complainant established a prima facie case of discrimination on the
alleged bases, the agency has articulated legitimate, nondiscriminatory
reasons for its actions. Complainant has not shown, by a preponderance of
the evidence, that the agency's reasons are pretextual. In so finding,
we note that we do not have the benefit of an AJ's findings after a
hearing, as complainant chose a FAD instead, and therefore, we can only
evaluate the facts based on the weight of the evidence presented to us.
Reasonable Accommodation
Under the Commission's regulations, an agency is required to make
reasonable accommodation to 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. �� 1630.2(o) and
(p). Assuming arguendo that complainant is a qualified individual with
a disability pursuant to the Rehabilitation Act, the record indicates
that the agency provided complainant with several of the accommodations
which he requested. As to the accommodation requests that were denied,
the record evidence does not indicate that complainant required them in
order to perform the essential functions of his job. Accordingly, we
discern no violation of the Rehabilitation Act on the part of the agency.
Accordingly, based on a thorough review of the record and the contentions
on appeal, including those not specifically addressed herein, we AFFIRM
the FAD.
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
September 12, 2007
__________________
Date
1 Complainant also alleged age discrimination as to this claim.
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0120072442
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036