Sonny M.,1 Complainant,v.Sally Jewell, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity Commission

Jan 6, 2017

0120143235 (E.E.O.C. Jan. 6, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Sonny M.,1
Complainant,

v.

Sally Jewell,
Secretary,
Department of the Interior,
Agency.

Appeal No. 0120143235

Hearing No. 551-2013-00130X

Agency No. DOI-BOR-12-0283

DECISION

Complainant filed an appeal from the Agency’s August 12, 2014, final order concerning his
equal employment opportunity (EEO) complaint alleging employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et
seq. Our review is de novo. For the following reasons, the Commission AFFIRMS the
Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Maintenance
Electrician at the Agency’s Grand Coulee Power Office (Dam) in Grand Coulee, Washington.

On June 20, 2012, Complainant filed an EEO complaint wherein he claimed that the Agency
discriminated against him on the bases of his disability (back and feet) and in reprisal for his
prior protected EEO activity under the Rehabilitation Act when he was subjected to a hostile
work environment, as reflected in the following incidents:

1. On February 22, 2012, Complainant was given a Letter of Counseling;

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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2. On March 1, 2012, Complainant was involuntarily moved to the Left Powerhouse;

3. Complainant is in the process of patenting a design and Supervisor II wants it so the
contractors can use it;

4. Complainant brought safety issues to his Supervisor’s attention and they were never
addressed; and

5. On October 24, 2012, Complainant was confronted by a coworker who got in his
face and said, “I don’t know what you are up to with this case but it will bite you in
the ass.”

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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
When Complainant did not file an objection, the AJ assigned to the case granted the Agency’s
Motion for Summary Judgment and issued a decision without a hearing on July 22, 2014.

The AJ found that no discrimination occurred. The AJ stated that Complainant failed to
establish a prima facie case of disparate treatment discrimination on the basis of disability.
According to the AJ, Complainant failed to show there were other employees who were treated
differently or better in substantially similar circumstances. The AJ also found that
Complainant did not set forth a prima facie case of reprisal. The AJ reasoned that the only
Agency action that could be considered an adverse employment action, the Letter of
Counseling, was issued before Complainant engaged in EEO activity. In the event that the
failure of Complainant’s Supervisor to address his safety concerns could be considered an
adverse employment action, the AJ stated that Complainant did not present evidence linking his
EEO activity to his Supervisor’s lack of attention to his concerns.

The AJ found that Complainant failed to establish a prima facie case of a hostile work
environment. The AJ reasoned that there was no evidence that the alleged incidents had the
purpose or effect of unreasonably interfering with Complainant’s work performance and/or
creating an intimidating, hostile, or offensive work environment. The AJ concluded that the
alleged conduct was not sufficiently severe or pervasive to be considered harassment.

With regard to the reasons for the actions at issue, the AJ stated that the Letter of Counseling
was issued to Complainant in order to inform him of the Agency’s expectations. The AJ noted
that the Agency transferred Complainant to the Left Powerhouse because he was unhappy in
the Third Powerhouse (also known as the Third Power Plant or the Right side). As to the
device being patented by Complainant, the AJ observed that the Agency’s position is that the
Agency can use the device, designed in part by Complainant, now and in the future since the
device was created on the job with the Agency’s resources. With respect to Complainant’s
safety concerns, the Agency maintained that it addressed these issues. As for the alleged
remark made by Complainant’s coworker, the AJ stated that the Agency investigated the
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matter, and the coworker denied the allegation, but the Agency counseled the coworker and
placed him on notice that such behavior would not be tolerated. The AJ found that
Complainant did not present evidence to raise a genuine issue of material fact regarding
whether the Agency’s articulated reasons were a pretext for disability discrimination or
reprisal.

The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed
to prove that it subjected him to discrimination as alleged. Thereafter, Complainant filed the
instant appeal.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is
“genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect
the outcome of the case.

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he
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. To establish a prima facie case of reprisal, Complainant must
show that (1) he engaged in protected EEO 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 his protected activity and the adverse treatment. Whitmire v. Dep't of the
Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).

The prima facie inquiry may be dispensed with where the Agency articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No.
05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No, 05950351 (Dec. 14,
1995).

We assume arguendo that Complainant is an individual with a disability. We also assume
arguendo that Complainant has set forth a prima facie case of disability discrimination and
reprisal. We further find that the Agency has articulated legitimate, nondiscriminatory reasons
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for its actions. Specifically, the Agency stated that the Letter of Counseling was issued after
Complainant expressed a lack of respect for management. The Superintendent stated that the
Letter of Counseling was a written documentation of concerns and expectations that addressed
the issues of posting on government property, training, work assignments, audio and video
recording and leave policy. According to the Superintendent, on January 25, 2012,
Complainant placed posters throughout the Third Powerhouse and Right walls without
approval. With regard to training, the Superintendent asserted that Complainant attended
Personnel Authorization List 2 training but chose not to take the final test to become certified.
The Superintendent explained that the certification is needed for clearances to work on
equipment.

As for Complainant’s work assignments, the Superintendent stated that Complainant would
finish his assigned work and choose where he would go next without obtaining direction from
or communicating with his Supervisor. The Superintendent maintained that when employees
complete their work, they are supposed to report back to the Supervisor for another
assignment. With regard to recording conversations at work, the Superintendent asserted that
Complainant wrote on his hardhat that he was recording conversations at work. The
Superintendent interpreted this as a threat to record conversations with other people without
permission. The Superintendent maintained that he discussed the issue with Complainant a few
times but Complainant was very confrontational. With respect to the leave policy issue, the
Superintendent stated that Complainant failed to follow the leave policy in January 2012.
According to the Superintendent, Complainant’s Supervisor informed him that he was unaware
of Complainant’s whereabouts and that later he found two leave slips that were filled out
erroneously and placed in an incorrect location.

As for Complainant’s reassignment from the Third Powerhouse to the Left Powerhouse, the
Superintendent explained that a swap occurred between Complainant and an employee who had
been working at the Left Powerhouse. The Superintendent stated that both employees were
unhappy in their current location and possessed similar skills. The Superintendent maintained
that Complainant appeared to look forward to the reassignment. In terms of the item
Complainant was seeking to patent, a Left Powerhouse Supervisor asserted that it was a brush
seating machine that was developed by Federal employees in the Third Power Plant with
Complainant’s assistance. The Superintendent stated that the brush seating device was taken
by Complainant to the Left Powerhouse. According to the Superintendent, Complainant
returned the device but believes it belongs to him. The Superintendent stated that he was
informed by an official in the Patents Department that the Agency has first preference on the
patent and if it declines, the employee can pursue the patent. According to the Superintendent,
the Patents Department official further stated that regardless of whether the Agency patented
the device, it was created on the job with the Agency’s resources and therefore it is the
permanent property of the Agency.

With respect to the safety issues that Complainant brought to management’s attention, the
Superintendent denied that Complainant’s concerns were ignored. The Superintendent stated
that Complainant had raised matters involving potable water and an asbestos abatement he did
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not like. The Superintendent explained that he informed Complainant that the potable water
issue was project-wide and beyond his control. With regard to the asbestos matter, the
Superintendent stated that Complainant’s concerns resulted in a meeting with the asbestos
crew. The Superintendent noted that additional samples were taken and the abatement was
completed based on the safety manager’s design.

As for Complainant’s confrontation with a coworker, the Agency stated that an investigation of
the incident was initiated. The coworker denied making the statement that Complainant had
accused him of uttering and there were no witnesses. Nonetheless, a management official
counseled the coworker and placed him on notice that this type of behavior will not be
tolerated.

Complainant attempts to establish pretext by claiming that he was involuntarily reassigned to
the Left Powerhouse. Complainant argues that his transfer was a form of disciplinary action
and reprisal. Complainant states that the employee he was swapped for is now in his position
at the Third Power Plant and he is stuck performing general maintenance at the Left
Powerhouse. As for the brush seating tool, Complainant argues that the Agency Patent Office
told him not to allow the contractors to use the design because they will steal it and he will not
receive the patent. With regard to the safety issues that he raised with management,
Complainant contends that management screamed at him in front of his coworkers when he
brought such issues to their attention. Complainant asserts that his job states that he is a
steward of safety. Complainant maintains that no action was taken to remedy his concerns and
that he was retaliated against due to his reports. Upon review of these arguments, we find that
Complainant has not presented persuasive evidence to establish that the Agency’s articulated
reasons for its actions were pretext intended to mask discriminatory intent.

Finally, to the extent that Complainant contends that he was subjected to a hostile work
environment with respect to the matters herein, the Commission finds that a finding of a hostile
work environment is precluded by the Commission's determination that Complainant failed to
establish that any of the actions taken by the Agency were motivated by discriminatory animus.
See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Therefore,
the Commission finds that Complainant has not established that he was subjected to
discrimination, reprisal, or a hostile work environment as alleged.

CONCLUSION

Based on a thorough review of the record, we AFFIRM the Agency’s final order implementing
the AJ’s finding that Complainant did not establish that he had been discriminated against, as
alleged.

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STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0416)

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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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”
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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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

January 6, 2017
Date