0120102646
12-16-2010
Robert T. Moten, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Robert T. Moten,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120102646
Hearing No. 570-2009-00865X
Agency No. 2009-22504-FAA-02
DECISION
On May 29, 2010, Complainant timely filed an appeal from the Agency's
April 21, 2010, 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 Commission accepts the appeal pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether Complainant has established that he
was subjected to a hostile work environment on the bases of race, age,
and disability.
BACKGROUND
Complainant worked as an Aviation Safety Inspector for the Agency's
Air Flight Standards, Aircraft Maintenance Division, Repair Station
Branch in Washington, D.C. at the time of events giving rise to this
complaint. On April 10, 2009, he filed a formal complaint alleging
discrimination on the bases of race (Black), age (58), and disability
(vertigo, back problems, diabetes, and urinary health issues) when,
from October 2008 to March 2009, the Agency (1) repeatedly requested
his medical records, (2) assigned him work outside his expertise; (3)
arbitrarily made changes to his assigned work duties; (4) monitored his
movement and work activities; and (5) threatened him with termination.
The Agency accepted the complaint for investigation, and at the
conclusion of thereof, 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
but his case was subsequently returned to the Agency for decision on the
record.1 Consequently, the Agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b).
The Agency determined that Complainant is an individual with a disability
covered by the Rehabilitation Act, but found that he failed to establish
that the conduct of which he complained was based upon his race, age,
or disability. Specifically, the Agency found that Complainant's medical
records were requested because, upon management's request that he fly
to Atlanta, Georgia to attend a conference, Complainant indicated
he was medically prevented from doing so. Therefore, management
requested medical information to learn how best to accommodate him.
The Agency further found that Complainant was not assigned work beyond his
expertise, but was designated as the point-of-contact for a new program
because his supervisors did not think he was carrying a full workload.
The Agency noted that this was the only project for which Complainant
was responsible.
The Agency also found that management did not make arbitrary changes to
Complainant duties. The record shows that Complainant's supervisor, who
began overseeing Complainant's work in August 2008, required Complainant,
a Union representative, to report any time he spent participating in Union
activity per the contract into which the Agency and Union had entered.
Finally, the Agency found that Complainant's movement and activities
were not monitored but, because his work station was located in a high
traffic area, management had reason to walk past his desk. The Agency
denied threatening Complainant with termination.
The Agency's decision ultimately concluded that Complainant was not
discriminated against as alleged. Complainant thereafter filed this
appeal. Complainant's contentions on appeal merely restated what he
alleged during the pre-appeal stage. Thus, they are inherently addressed
below and need not be discussed separately.
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, at 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").
ANALYSIS AND FINDINGS
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability,2 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
Systems, 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 Systems,
Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme
Court has stated, "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).
In determining whether a working environment is hostile, factors to be
considered 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. Harris
v. Forklift Systems, Inc., 510 U.S. 17 (1993). The Commission notes that
unless the conduct is severe, a single group of isolated incidents will
not be regarded as discriminatory harassment. Walker v. Ford Motor Co.,
684 F.2d 1355, 1358 (11th Cir. 1982).
Here, we find that the employment actions of which Complainant complained
did not rise to the level of actionable harassment. Complainant alleged
he was harassed by repeated requests from the Agency for medical proof
when he indicated he could not fly due to a medical condition. But the
evidence shows that Complainant's supervisors were initially unaware
of his limitations, and that the medical information they requested
upon being put on notice was consistent with the Agency's obligation to
gather medical evidence in order to determine how Complainant could best
be accommodated. Where, as here, an employee's disability or the need
for an accommodation was not known or obvious at the time of the request,
it is consistent with business necessity for an agency to ask an employee
for reasonable documentation about his disability and its functional
limitations that require a reasonable accommodation. See Enforcement
Guidance: Disability-Related Inquiries and Medical Examinations of
Employees Under the Americans with Disabilities Act (ADA), (July 27, 2000)
at 20. It is noted that the Agency never required Complainant to fly nor
does Complainant claim he was required to perform work beyond what his
medical restrictions allowed. It is further noted that the Commission
finds no issue with the Agency requesting medical information three
times because its first request yielded medical documentation that was
not detailed enough to allow the Agency to determine what accommodations
would be most appropriate to give Complainant access to his work, and
its second request went unheeded.
We further find that the Agency did not assign Complainant work beyond
his expertise but upon determining that he was not carrying a full
workload, management assigned him a new area of responsibility whereby
all he would have to do is refer issues dealing with air carriers to the
appropriate individuals. There is no evidence in the record to suggest
that Complainant's supervisor acted inappropriately by requesting that
Complainant inform him when he would be away from his official work
duties performing tasks for the Agency or that management subjected him
to extra scrutiny by walking past his work area. Further, Complainant's
own representative indicated that she was present when Complainant's
supervisor allegedly threatened to terminate him, and no such comment
was ever made. Based on this evidence, Complainant has not proved he
was discriminated against.
CONCLUSION
Upon a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we find no reason
to disturb the Agency's finding of no discrimination, and hereby AFFIRM
the 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 (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
December 16, 2010
Date
1 It is unclear from the record why the AJ returned Complainant's case
to the Agency for a decision on the record, but as Complainant has not
raised this matter, it is not an issue before us on appeal.
2 We will assume without finding that Complainant is an individual with
a disability.
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0120102646
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102646