01a40969
03-11-2005
Roy G. Robins, Sr., Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Roy G. Robins, Sr. v. Department of the Navy
01A40969
March 11, 2005
.
Roy G. Robins, Sr.,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A40969
Agency No. 02-62755-004
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
AFFIRMS the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a Crane Operator, WG-5725-11, at the Navy Public Works
Center in Pearl Harbor, Hawaii. Complainant sought EEO counseling and
subsequently filed a formal complaint on September 12, 2002, alleging
that he was discriminated against when he was subjected to continuing
harassment on the basis of race (Hawaiian/Caucasian) and in reprisal
for prior EEO activity.<1> In his complaint, complainant cited the
following incidents:
(1) On July 16, 2002, complainant was told that he was being charged
with Unauthorized Absence (UA) from July 3 through 12, 2002, despite
having presented a legitimate doctor's slip indicating that he was sick;
On July 16, 2002, complainant was told that he did not sound sick when
he called in, and that he should report to the medical dispensary so
that they could see if he was sick;
In 1995, complainant's second-level supervisor (S2) told him �You
Hawaiians lie and are phonies�; and
On several occasions, S2 threatened complainant that if he did not go
to work he would be moved to the Pearl Harbor work site.
On March 11, 2003, complainant's complaint was amended to include the
claim that he was discriminated against based on reprisal for prior EEO
activity when:
On February 26, 2003, he was asked to work overtime, but he was unable
to work;
On February 27, 2003, complainant was assigned to work with the crane
riggers;
Complainant was assigned to assist crane riggers when he returned to
work after taking leave; and
During the first week of March 2003, complainant was not allowed to
attend training to operate and learn a new type of crane/equipment.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision (FAD).
In its FAD, the agency found that there were legitimate reasons why each
incident occurred,<2> and further concluded that complainant failed to
establish that the cited incidents, viewed cumulatively, rose to the
level of hostile work environment harassment. The FAD concluded that
complainant was not subjected to discrimination or retaliation.
Complainant raises no new arguments on appeal. The agency requests
that we affirm its FAD. As an initial matter we note that, as this is
an appeal from a FAD 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).
First, applying a hostile work environment analysis to the challenged
actions, we note that 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) he 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 his 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 incidents cited
here, taken together, are simply insufficiently severe or pervasive to
alter the terms or conditions of complainant's employment and to create
an abusive or hostile environment.
The Commission finds that issues (1), (6), (7) and (8), are also
properly analyzed under a disparate treatment framework. The allocation
of burdens and order of presentation of proof in a Title VII case
alleging disparate treatment discrimination is a three step procedure:
complainant has the initial burden of proving, by a preponderance of
the evidence, a prima facie case of discrimination; the burden then
shifts to the employer to articulate some legitimate, nondiscriminatory
reason for its challenged action; and complainant must then prove, by a
preponderance of the evidence, that the legitimate reason offered by the
employer was not its true reason, but was a pretext for discrimination.
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
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. As to (1),
management stated that once complainant brought in a doctor's note,
the UA was changed to Leave Without Pay (LWOP) because complainant had
no accrued leave. As to (6) and (7), management agreed that after
complainant has been on leave he is often assigned to work with the
riggers (which is part of his job description). Management explains that
crane work needs to be planned in advance, and when complainant does not
show up for work he cannot be scheduled to run the crane. As to (8),
complainant was not allowed to attend training to operate and learn a
new type of crane/equipment because he is not as dependable in terms of
attendance, as the three individuals who were selected for the training.
Complainant's first-level supervisor (S1) noted that eventually everyone,
including complainant, will be trained. We further find that complainant
has failed to prove, by a preponderance of the evidence, that management's
actions were motivated by discriminatory animus. In so finding, we note
that S2 denies that he ever stated �You Hawaiians lie and are phonies,�
however, even assuming S2 did make such a comment, complainant has not
persuaded the Commission that the incidents at issue herein which occurred
approximately seven or more years later, were related to that comment,
or were motivated by discriminatory animus. Accordingly, after a careful
review of the record, including all statements submitted on appeal,
and evidence 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:
March 11, 2005
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__________________
Date
1 Complainant alleges reprisal for his verbal opposition to his
second-level supervisor's unjust and discriminatory treatment of him.
2 The FAD found however, that S2 denied making the comment described in
incident (3).