01975716
03-09-2000
Ronald E. Stone, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Ronald E. Stone v. Department of Agriculture
01975716
March 9, 2000
Ronald E. Stone, )
Complainant, )
) Appeal No. 01975716
v. ) Agency No. 950310
)
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his Equal Employment Opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.;
and � 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791 et seq.<1> Complainant alleges that he was discriminated against
and harassed on the bases of race (White), sex (male), age (51), and
physical and mental disabilities (Impingement Syndrome [relating to
the shoulder] and Depression) when: (1) his supervisory duties were
removed; (2) he was denied the use of a private vehicle; (3) he was
chastised by his supervisor; (4) he was denied training; and (5) he was
subjected to negative comments. The appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
For the following reasons, we affirm the FAD.
The record reveals that during the relevant time, complainant was
employed as a Resource Assistant (GS-9) at the agency's Region 5,
Mendocino National Forest, Upper Lake District (hereinafter the facility).
Believing he was discriminated against and harassed as referenced above,
complainant sought EEO counseling and subsequently filed a complaint
on March 10, 1995. At the conclusion of the investigation, complainant
requested that the agency issue a final agency decision. It is from this
decision complainant now appeals. Complainant reiterates his contentions
on appeal. The agency did not submit a response.
In its FAD, the agency first concluded that complainant failed to
establish prima facie cases of race, sex, age or disability discrimination
with respect to any of the issues alleged because he did not show that he
was treated differently from employees outside of his protected classes
or that his protected bases had any bearing on the agency's actions.
The agency then concluded that, assuming arguendo, complainant presented
a prima facie case of discrimination on any of the alleged bases, he
failed to present evidence that any of the agency's actions were, more
likely than not, a pretext to mask unlawful employment discrimination.
Disparate Treatment
Based on the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) and Loeb v. Textron, Inc., 600 F.2d 1003 (1st
Cir. 1979), the Commission agrees with the agency that complainant
failed to establish a prima facie case of discrimination with respect to
race, sex or age when he presented no evidence that similarly situated
individuals outside of his protected classes were treated more favorably.
Moreover, there is no evidence that any of the alleged adverse actions
were motivated by discriminatory animus towards complainant's race,
sex or age. Assuming arguendo complainant established that he was a
"qualified individual with a disability" as defined by the Rehabilitation
Act, we find that complainant failed to prove that he was treated less
favorably than similarly situated non-disabled employees or that any
of the alleged adverse actions were motivated by discriminatory animus
towards complainant's disability.<2>
Harassment
Regarding complainant's claim of harassment, complainant may assert a
Title VII cause of action if the discriminatory conduct was so severe
or pervasive that it created a hostile work environment on the basis of
his race, color, gender, religion, sex, national origin or retaliation.
See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); 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). Similarly, the Commission has stated that:
"Harris also applies to cases involving harassment on the basis of age
or disability." See Enforcement Guidance on Harris v. Forklift Systems,
Inc. at 9.
In evaluating the degree to which harassment is sufficiently severe
or pervasive to constitute a hostile environment, the Commission has
noted that "a 'hostile environment' claim generally requires a showing
of a pattern of offensive conduct." See EEOC Policy Guidance on Current
Issues of Sexual Harassment, N-915-050, No. 137 (March 19, 1990).
Initially, we note that there is no evidence in the record to support
a finding that complainant was denied training. Complainant's training
was approved after it was determined not to be duplicative. Complainant
appears to be arguing that because of the delay resulting from his
supervisor's concern that the training was duplicative, the course was
filled before he could submit his request to attend. However, there
is no evidence that complainant's supervisor exercised anything but
legitimate and reasonable concern that complainant was not repeating a
training course.
Concerning complainant's assertion that he was denied the use of a
private vehicle, management stated that the agency's policy regarding
the use of private vehicles was in flux, but no one admitted to denying
complainant the use of a private vehicle. Moreover, complainant admits
to having used one.
Regarding complainant's claim that his supervisory duties were removed, we
find that some of complainant's supervisory duties were removed because:
(1) he was not accomplishing his work; and (2) while he was on sick leave,
he had improperly designated lower grade employees to supervise higher
grade employees in his absence, so his immediate supervisor assumed
supervisory command. We do not find that these actions were taken
to harass complainant, but rather to maintain the efficiency and the
appropriate chain of command at the facility. See Wolf v. United States
Postal Service, EEOC Appeal No. 01961559 (July 24, 1998). Furthermore,
we find that complainant was "chastised" by his immediate supervisor
for not going through the proper chain of command before releasing a
publication that had potentially negative publicity for the agency.
Again, we conclude that this action was not taken to harass complainant
but for legitimate, managerial reasons. Id.
Finally, we find that complainant had developed a pattern of discussing
his personal problems with his colleagues and then accusing them of
making negative comments about him when they repeated things he had said.
We also find that complainant had threatened his supervisor and one of
his co-workers to such a degree that they obtained restraining orders
against him. While the environment in this facility may have been
"hostile," the evidence indicates that the hostility, more often than
not, originated from or was exacerbated by complainant's behavior.
In reaching this conclusion, the Commission notes that one employee
testified that complainant had threatened: (1) to bring a gun to work; and
(2) to bash employees' heads in. Moreover, a second employee testified
that complainant would become "angry and out of control." Accordingly, we
find that the negative comments, which are the only incidents of offensive
conduct on the part of the agency, were motivated by personal animus
toward complainant because of his own behavior, and not by discriminatory
animus on the basis of his race, sex, age or disability. See Determan
v. Department of the Navy, EEOC Appeal No. 01961521 (June 5, 1998).
Therefore, after a careful review of the record, including complainant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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. 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
3/9/00
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Equal Employment Assistant Date
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2 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. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: WWW.EEOC.GOV.