Roy G. Robins, Sr., Complainant,v.Gordon R. England, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionMar 11, 2005
01a40969 (E.E.O.C. Mar. 11, 2005)

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).