0120130614
05-10-2013
Richard Gebhart, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Richard Gebhart,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120130614
Hearing Nos. 550-2010-00230X, 550-2010-00246X
Agency Nos. ARCESAC08SEP03801, ARCESAC09AUG03
DECISION
On November 16, 2012, Complainant filed an appeal from the Agency's October 25, 2012, 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., 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 Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Environmental Protection Specialist at the Agency's Regulatory Office in Reno, Nevada.
On November 11, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (anxiety), age (56), and reprisal for prior protected EEO activity when:
1. On April 15, 2008, he received an email message explicitly referencing his tenure with the Agency;
2. On August 4, 2008, management gave him an involuntary temporary duty assignment (TDY), to the Agency's Bountiful, Utah office which extended beyond ten months and thus violated his position description limiting the duration of any TDY assignment to 20 percent;
3. On October 17, 2008, he received an email message explicitly referring to the length of his service, experience and age;
4. On October 30, 2008, management suspended him for five days;
5. In or around January 2009, management issued him an annual appraisal for fiscal year 2008 indicating that his level of performance was below his actual performance level;
6. On March 23, 2009, management gave him a Management Directed Reassignment, (MDR), effective April 16, 2009;
7. On May 15th, 2009, management issued him a Notice of Proposed Removal;
8. On or about June 26, 2009, his supervisor yelled at him during a weekly project management meeting, slammed Complainant's door, and forcibly threw a file on the floor;
9. On or about July 29, 2009, Complainant's supervisor violently slammed the door behind him as he angrily left Complainant's office;
10. On or about July 31, 2009, Agency management took his Common Access Card, Government credit card, and office keys before the date that his removal was to become effective; and
11. On or about August 15, 2009, Complainant was constructively discharged from his position.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on August 7, 2012, and issued a decision on September 12, 2012. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
This appeal followed.
The record indicates that in March 2008, a new, much younger, much less experienced manager, became Complainant's supervisor. Complainant's supervisor (JG), was located in the Agency's office location in Bountiful, Utah and supervised Complainant remotely from this location. At the time Complainant began reporting to his new supervisor, the record indicates that Complainant was also faced with increased work demands brought on by changes in the Agency's data input procedures and by new requirements contained in the Agency's recently-amended regulations. At the hearing in this matter, the parties agreed that Complainant's senior level Environmental Protection Specialist position was one of the most demanding, most stressful positions at the Agency, and was made even more so by the new work demands Complainant faced in April 2008. The AJ indicated in her bench decision, that "it's also undisputed that Complainant bristled against JG's attempts to manage him." JG testified that from the beginning of his tenure as Complainant's immediate supervisor, Complainant was consistently dismissive of his authority, rude, unnecessarily argumentative, disruptive and unproductive. According to the record, JG testified that although Complainant appeared to have reasonable differences of opinion with JG about how the Agency should proceed on some regulatory matters, it was the disrespectful and dismissive manner in which he communicated his concerns that became problematic. Complainant's supervisor testified at the hearing that he welcomed input from all of his subordinates regarding how to handle assignments, even if such input was not completely aligned with his own assessment of how to proceed. However, JG testified that he expected his subordinates to follow a professional protocol when discussing assignments. He expected his employees to offer their differing opinions to him, after which they could engage in further discussion. Ultimately, however, after he considered the opinions of his employees on a particular issue, then issued his final determination, JG expected them to carry out his instructions without further argument or discussion, regardless of whether the subordinate employee agreed with his interpretation of the regulations.
According to the Agency, however, Complainant's often failed to heed his supervisory instructions if they differed from his own opinion. When Complainant disagreed with his supervisor on a regulatory issue, instead of offering his recommendations and then implementing his supervisor's final determinations, Complainant would waste time by continuing to argue his point and refusing to complete his work assignment as instructed. JG testified that Complainant's disrespectful and argumentative conduct prevented him from meeting the minimum productivity requirements of his position and caused JG and other managers to spend an inordinate amount of time and resources responding to Complainant's lengthy protests. Complainant refused, according to the Agency to simply accept the authority of his supervisor.
Conversely, Complainant asserts that he was unlawfully harassed by JG and other managers as referenced above. The AJ in this matter was charged with determining the credibility of the Agency's articulated concerns regarding Complainant's conduct and performance and Complainant's claims of harassment. The AJ said in her decision that "the record is replete with credible evidence that management had numerous legitimate nondiscriminatory, non-retaliatory reasons to be gravely concerned about Complainant's conduct and performance." The AJ referenced Complainant's own emails to his supervisor and the supervisory project manager as evidence in full support of the Agency's testimony that Complainant communicated in an insubordinate and unprofessional manner which diverted the attention of both managers from attending to their other, substantive duties. Specifically, in an email from Complainant to his first and second line supervisors, JG and MJ, dated April 15, 2008, he used a sarcastic and dismissive tone regarding management's instruction to edit his reports to conform to the office standard format. Complainant said that the direction from his supervisors caused him to have to "dumb down [his] submittals to look like the rest of the determinations that have been submitted, which you have praised as being excellent documents." Later that same day, Complainant sent an email to his second line supervisor, MJ protesting instructions to resubmit a report he had written incorporating the edits suggested by Complainant's former first line supervisor, KD. Complainant wrote, "[h]ave you considered how much time has been wasted today on this issue? Certainly, you have better things to do. I know I do. If [KD] wants to make these kinds of minor changes, then do it and do not bother me." The following day, on April 16, 2008, Complainant took a similar insubordinate tone in another email to JG in which he resisted attempts to supervise his work. In this email Complainant wrote, "I get the feeling that you, like [MJ], are not reading my emails very carefully." He continued, "If you two want to re-review and rewordsmith (sic) it, go for it. You know where it is located. It is your option whether you two want to spend more time and be involved in another distraction for an action that is already completed."
At the hearing, JG and MJ testified that Complainant's insubordinate and disruptive behavior continued throughout the summer of 2008 and that his productivity was drastically lower than any of his colleagues. Consequently, JG and MJ made the decision to give Complainant an involuntary TDY assignment to Bountiful, Utah on August 4, 2008 where JG could more closely supervise Complainant's work until Complainant showed some signs of improvement and then could return to the Reno, Nevada office. MJ also explained in his testimony that between 2001 and 2005, he had served as Complainant's immediate supervisor and was faced with similar challenges regarding Complainant's lack of productivity and unnecessarily argumentative behavior. In response to the issues he was having with Complainant during that time period, he gave Complainant a TDY reassignment to the Agency's Sacramento office where MJ was located and was able to closely monitor Complainant's work. According to MJ, this approach was effective at improving Complainant's productivity and conduct. In that regard, Complainant's supervisors believed that that same approach could work again to correct Complainant's performance deficiencies.
However, JG and MJ testified that the TDY did not improve Complainant's disrespectful behavior or his low productivity and therefore renewed Complainant's TDY until they could see some progress in these areas. The record indicates that in October 2008, the Agency suspended Complainant's for five days for failing to complete his assignments and for engaging in insubordinate conduct. Complainant's poor performance resulted in a low rating on his annual performance appraisal in January 2009 Complainant then filed an EEO complaint claiming that his extended TDY assignment violated the terms of his position description which limited TDY travel to a maximum of 20 percent of his duties. JG testified that he learned of the TDY limitation in Complainant's position description only after Complainant filed his EEO complaint. In that regard, JG consulted with appropriate Agency officials including individuals from human resources and Agency counsel regarding the matter. JG was advised to offer Complainant a permanent reassignment to the Bountiful, Utah office so that JG could continue to monitor Complainant more closely until he showed signs of improvement and could return to Reno, Nevada without violating the terms of Complainant's position description. Therefore, on March 23, 2009, the Agency gave Complainant a MDR informing that he was now permanently reassigned to the Bountiful, Utah office until further notice. The MDR also informed Complainant that he had the option of declining the MDR if he preferred involuntary separation, which would entitle him to severance pay and eligibility for the Agency's priority placement program. Complainant chose to decline the MDR. The record further indicates that after Complainant declined the Agency's MDR, he forwarded an email to JG, which was in fact intended for another recipient, in which he called JG an "idiot." Upon reading the insulting email, JG consulted with human resources and Agency counsel to determine an appropriate response to such insubordination and disrespectful behavior. Agency officials agreed that Complainant's conduct was insubordinate and that Complainant's involuntary separation from the Agency should instead be processed as a removal for cause. On Complainant's last day; July 31, 2009, his supervisor retrieved his common access card, government credit card, and office keys.
At the hearing in this matter the AJ found that Complainant was not a credible witness. In her bench decision, the AJ indicated that while both of Complainant's supervisors provided clear, detailed responses to the questions posed during the hearing and were not evasive, or untruthful, she found that Complainant undermined his own credibility at several points. The AJ found that Complainant was deliberately evasive, provided misleading testimony and that he was willing to exaggerate to support his claims of unlawful discrimination. Specifically, Complainant testified at the hearing that he believed that his supervisor demonstrated bias against him on the basis of age when he advised Complainant to stop engaging in "childish games," by continuing to engage in inappropriate and disruptive conduct. The AJ said in her decision that "[she] could not credit Complainant's testimony that even he truly believed that the word 'childish' in this context somehow manifested unlawful bias on the basis of his older age." Instead, she found that the claim was an attempt on Complainant's part to portray a non-discriminatory incident as unlawful, in support of "his meritless claims in this case."
The AJ concluded that Complainant failed to present any credible evidence in support of his cliams and found that there was none in the record. Moreover, the AJ determined that the documentary evidence found in the case showed that Complainant's insubordinate and disruptive communication provided the Agency with legitimate, nondiscriminatory reasons for taking the actions against Complainant at issue in this matter.
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, at � VI.B. (November 9, 1999).
Disparate Treatment
To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing 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 Constr. 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 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Man's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Complainant may establish a prima facie case of discrimination based on age by demonstrating that (1) he is a member of a protected class, (2) he was subjected to adverse treatment, and (3) he was treated differently than otherwise similarly situated employees outside of his protected class. Walker v. U.S. Postal Serv., EEOC Appeal No. 01A14419 (Mar. 13, 2003), Ornelas v. Dep't of Justice, EEOC Appeal No. 01995301 (Sept. 26, 2002). It is not necessary, however, for Complainant to rely strictly on comparative evidence to establish an inference the Agency was motivated by unlawful discrimination. Soriano v. U.S. Postal Serv., EEOC Appeal No. 01A14814 (Feb. 21, 2003); see also O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312 (1996); and EEOC Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002, at n.4 (Sept. 18, 1996).
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas, 411 U.S. at 802). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas and Coffman v. Dep't of Veterans Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), Complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). A nexus may be shown by evidence that the adverse treatment followed the protected activity within such a period of time and in such a manner that a reprisal motive is inferred. See Clay v. Dep't of the Treasury, EEOC Appeal No. 01A35231 (Jan. 25, 2005).
Even assuming arguendo that Complainant satisfied the above elements to establish a prima facie case of discrimination on any alleged basis, we find further that the Agency articulated legitimate, nondiscriminatory reasons for its conduct as alleged in this matter and Complainant failed to show that those reasons are pretext for discrimination. Complainant failed to establish that the Agency's action was based on discriminatory motives.
Hostile Work Environment Harassment
To the extent that Complainant alleges that the Agency's alleged conduct including his reassignment constituted discriminatory harassment, the Commission notes that 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. U.S. Postal Serv., 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 Sys., Inc. at 3, 9 (March 8, 1994). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has stated that: "Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile environment harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance at 6.
After a review of the record, the Commission finds that Complainant's claims do not constitute discriminatory harassment. The Commission concludes that Complainant did not prove that he was subjected to conduct sufficiently severe or pervasive to create a hostile work environment and that he also failed to prove that the Agency's actions were unlawfully motivated by his protected classes. Even assuming that the alleged incidents would be sufficiently severe or pervasive to constitute a hostile work environment, there is no evidence that the Agency was motivated by discriminatory animus. Accordingly, Complainant has not shown that he was subjected to a discriminatory hostile work environment.
Constructive Discharge
A discriminatory constructive discharge occurs when the employer, motivated by discriminatory animus, creates working conditions that are so difficult, unpleasant, or intolerable that a reasonable person would feel compelled to resign. Doe v. Social Security Administration, EEOC Appeal No. 01A114791 (February 21, 2003). The Commission has established three elements which Complainant must prove to substantiate a claim of constructive discharge: 1) a reasonable person in Complainant's position would have found the working conditions intolerable; 2) the conduct causing the intolerable working conditions is an EEO violation; and 3) Complainant's resignation was caused by the intolerable working conditions. See Taylor v. Air Force and Army Exchange Service, EEOC Request No. 05900630 (July 20, 1990).
After careful review of the record in this matter, we find that Complainant has not shown that the Agency engaged in discrimination that became so intolerable that he had no choice but to resign. Therefore, Complainant failed to establish that his resignation (later processed by the Agency as a removal action), amounted to a constructive discharge based on discriminatory animus toward Complainant's protected classes. We find that Complainant failed to establish pretext and that the AJ's findings that no hostile work environment existed and no discrimination occurred with regard to each claim are supported by substantial evidence. Furthermore, even without the AJ's credibility determinations we find that Complainant failed to meet his burden of proof to prove by a preponderance of the evidence that the Agency's actions were motivated by discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we discern no basis to disturb the AJ's decision. Accordingly, after a careful review of the record, the Agency's final order is AFFIRMED.
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 (November 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 10, 2013
__________________
Date
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0120130614
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130614