0120112856
10-20-2011
Stephen A. Sanchez, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior, (Fish and Wildlife Service), Agency.
Stephen A. Sanchez,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior,
(Fish and Wildlife Service),
Agency.
Appeal No. 0120112856
Agency No. FWS100516
DECISION
On May 10, 2011, Complainant filed an appeal from the Agency’s April 26,
2011, final decision concerning his equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of 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 deems
the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Biological Science Technician at the Agency’s Fish and Wildlife
Service facility in Ennis, Montana.
On September 2, 2010, Complainant filed an EEO complaint alleging that
the Agency discriminated against him on the bases of disability1 (stress
and work related injuries), age (51), and reprisal for prior protected
EEO activity when he was subjected to incidents of harassment and,
effective July 20, 2010, he was suspended from work for three days.
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 EEOC Administrative Judge (AJ). In accordance
with Complainant’s request, the Agency issued a final decision pursuant
to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant
failed to prove that the Agency subjected him to discrimination as
alleged.
Complainant alleges in this matter that, on June 1, 2010, his supervisor
insulted him when he attempted to instruct Complainant on the proper use
of a rake. Complainant admits that in response to his supervisor’s
instruction Complainant said, “it’s not rocket science.”
Complainant further alleges that during an argument with a co-worker, he
was yelled at and spit on by the co-worker. Complainant also alleges that
the co-worker told Complainant that he was not allowed to leave the area.
Complainant indicates that, in response to his co-worker’s actions,
Complainant advised Agency officials that if he was threatened again,
he would “go outside to settle the issue.”
According to the Agency, on June 9, 2010, Complainant mentioned to his
supervisor that he was going to sweep grass clippings from the previous
day’s work. Complainant’s supervisor advised Complainant that based
on his own experience, the grass sweeper worked best when attached to
a low hitch. The supervisor stated that in response to this advice,
Complainant was rude and dismissive. Complainant interrupted his
supervisor when he was talking, saying, “it’s not rocket science,”
then walked out of the room. The supervisor further indicated that when
he attempted to discuss Complainant’s rude behavior, Complainant became
loud and disruptive, shouting obscenities to his supervisor. Agency
management witnesses further assert that Complainant threatened his
co-worker with violence during an argument. The Agency also indicates
that Complainant had to be physically restrained during the incident.
As a result of this incident, management issued Complainant a proposal
to suspend followed by a decision to suspend Complainant for three days,
effective July 20, 2010. Management witnesses stated that Complainant
had been counseled in the past regarding his bad attitude, disruptive
outbursts and disrespectful behavior. Management further stated that
Complainant’s intimidating outbursts have had a negative impact on
the working environment and have made it difficult for others to work
with Complainant.
CONTENTIONS ON APPEAL
Complainant offers no arguments on appeal regarding the Agency’s
finding of no discrimination in this matter.
ANALYSIS AND FINDINGS
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”).
Here, we agree with the Agency's finding of no discrimination. Generally,
claims of disparate treatment are examined under the tripartite analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973); Hochstadt v. Worcester Foundation for Experimental Biology,
Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd , 545 F.2d 222 (1st
Cir. 1976). For Complainant to prevail, she must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited consideration was a factor in the adverse employment
action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). For instance, to establish a
prima facie case of reprisal, Complainant generally must show that:
(1) she engaged in protected EEO activity; (2) the Agency was aware of
the protected activity; (3) subsequently, she 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 (September 25, 2000). 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, 143 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981).
Even assuming arguendo that Complainant satisfied the above elements to
establish a prima facie case of discrimination on any alleged basis, we
find that the Agency articulated legitimate, nondiscriminatory reasons
for its actions in this matter, and Complainant failed to prove, by
a preponderance of the evidence, that those reasons were pretext for
discrimination. Simply put, Complainant failed to establish that the
Agency's action was based on discriminatory motives.
To the extent that Complainant alleges that the he was subjected to
discriminatory harassment, the Commission notes that harassment of
an employee that would not occur but for the employee's race, color,
sex, national origin, age, disability, 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 Sys., 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 Sys., Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance
at 6. The Supreme Court has stated that: “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).
To establish a claim of hostile environment harassment, Complainant must
show that: (1) he belongs to a statutorily protected class; (2) he was
subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained
of was based on his statutorily protected class; (4) the harassment
affected a term or condition of employment and/or had the purpose or
effect of unreasonably interfering with the work environment and/or
creating an intimidating, hostile, or offensive work environment; and
(5) there is a basis for imputing liability. See Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should
be evaluated from the objective viewpoint of a reasonable person in the
victim's circumstances. Enforcement Guidance at 6.
After a review of the record, the Commission finds that Complainant's
claims do not constitute discriminatory harassment. The Commission
concludes that Complainant did not prove that he was subjected to conduct
sufficiently severe or pervasive to create a hostile work environment and
that he also failed to prove that the Agency's actions were unlawfully
motivated by his protected classes. Even assuming that the alleged
incidents would be sufficiently severe or pervasive to constitute a
hostile work environment, there is no evidence that the Agency was
motivated by discriminatory animus. Accordingly, Complainant has not
shown that he was subjected to a discriminatory hostile work environment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the final
agency decision finding no discrimination.
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
October 20, 2011
__________________
Date
1 For purposes of analysis only, we assume without finding that
Complainant was a qualified individual with a disability.
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0120112856
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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