0120112979
05-09-2013
Thomas O. Beard, Complainant, v. Stephen Chu, Secretary, Department of Energy, Agency.
Thomas O. Beard,
Complainant,
v.
Stephen Chu,
Secretary,
Department of Energy,
Agency.
Appeal No. 0120112979
Agency No. 100110WAPA
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's May 2, 2011, final decision concerning his equal employment opportunity (EEO) complaint alleging 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision (FAD) which found that Complainant failed to show that he was subjected to discrimination or a hostile work environment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Human Resources Assistant at the Agency's Western Area Power Administration facility in Lakewood, Colorado. On August 30, 2010, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), sex (male), disability (mental and physical),1 and reprisal for prior protected EEO activity when:
1. His request for advanced sick leave was denied on July 12, 2010; and
2. He also alleged that he was subjected to a hostile work environment when:
a. in April 2010, his supervisor, the Supervisory Human Resources Specialist, proposed to have him removed from his position of Human Resources Assistant based on gossip and false accusations by female coworkers about his behavior.
b. in April 2009, his supervisor intentionally disregarded his request to not train another employee, aggravating his known mental condition.
c. in May 2009, his supervisor, insisted on discussing a letter Complainant had given to her, intentionally disregarding his request to defer the discussion because of his anxiety.
d. in May 2009, his supervisor repeated a comment she had made in July 2004, regarding men not having the right temperament for a position in Human Resources.
e. in July 2004, his supervisor failed to stop a female coworker from threatening and bullying him.
Following an investigation by the Agency, Complainant requested that the Agency issue a FAD. The FAD found that Complainant failed to show that he was discriminated against and/or was subjected to a hostile work environment. First, the FAD procedurally dismissed claim 2 for untimely EEO Counselor contact. The Agency explained that the claims were discrete actions which did not amount to a continuing violation. The Agency argued that the Complainant should have sought EEO Counseling regarding these matters within the 45-day time limit allowed by EEOC regulations. The Agency however, agreed to consider the claims as background information.
The FAD also found that assuming arguendo that Complainant established a prima facie case of discrimination as to all bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant was not granted advanced sick leave because he indicated during his conversation with the acting supervisor that he would not be returning to work. The Agency indicated that because he was not returning to his position this left no opportunity for him to make-up the advanced leave so his request was denied. The Agency explained that following an extended absence, Complainant called the acting supervisor and indicated that he would be absent on his return to work day, July 12, 2010, and he indicated that he was going to see his doctor. He also maintained that he did not expect that he would be returning to work and indicated that the last time that the acting supervisor would see him in the office would be on July 15, 2010. Either during this conversation or a conversation on the following day, Complainant requested advanced sick leave. As he had already told the acting supervisor that he would not be returning to the office, his request was denied. When Complainant returned to the office, he packed up his belongings and left.
The FAD found that Complainant failed to establish that discriminatory animus was involved with the denial of his advanced sick leave request. The FAD also found that Complainant failed to show that the Agency's articulated legitimate, nondiscriminatory reason was pretext for discrimination. Additionally, the FAD determined that claim 2 was properly dismissed as untimely and maintained that based on the evidence Complainant failed to show that he had been subjected to a hostile work environment.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that he never told anyone that he was leaving the Agency permanently. He maintains that he called to let the acting supervisor know that he needed to take sick leave. At that time, he stated that he also requested advanced sick leave but the acting supervisor denied his request. He asked if the denial was just for him or whether it was company policy. The acting supervisor, he stated, indicated that she would follow-up regarding the matter and call him back. Complainant contends that when she called him back she told him that his request for advanced sick leave had been denied and told him that if he did not return to work he would be placed on Absent Without Leave (AWOL).
Complainant contends that there are documents that will show that the females in his office were gender prejudice. Also, he maintains that he packed his belongings because, according to his doctor's note, he knew that he was going to be absent for at least a year and he knew the Agency was short on space so he wanted to let the Agency use his space.
In response, the Agency contends among other things that it articulated legitimate, nondiscriminatory reasons for its actions and Complainant failed to show that those reasons were pretext for discrimination. The Agency requests that its FAD be affirmed.
ANALYSIS AND FINDINGS
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to affirm the Agency's FAD for the following reasons.
Disparate Treatment bases on race, sex and reprisal
The Commission finds that even if we assume arguendo that Complainant established a prima facie case of reprisal and discrimination based on race and sex, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant's request for advanced sick leave was denied because it was believed that he would not be returning to the Agency and therefore would not have an opportunity to make-up the borrowed time. We find that other than Complainant's conclusory statements that discrimination must have been involved in this matter, he has presented no evidence which demonstrates that the Agency's articulated legitimate nondiscriminatory reasons were pretext for discrimination.
Disability Discrimination
Further, even if we assume, arguendo, that Complainant established he is a qualified individual with a disability and that there is a prima facie case of disability discrimination, we find that Complainant has not demonstrated that his disability was considered with regard to the Agency's refusal to provide him with advanced sick leave. Again, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. The record evidence shows that the Agency believed that Complainant was not returning to the Agency as was evidenced by Complainant coming in to the office and packing up his things. We find that Complainant has not presented any evidence which demonstrates that discriminatory animus was involved.
Moreover, we do not find that Complainant showed that he was denied a reasonable accommodation. The record shows that medical documentation supplied by Complainant on June 10, 2009, and July 8, 2009, indicated that Complainant did not need any accommodation. We further find that Complainant did not provide any evidence which showed that he requested a reasonable accommodation in July 2010 with respect to his request for advanced sick leave.
Hostile Work Environment
The Commission finds that the FAD correctly dismissed the five claims raised by Complainant to support his hostile work environment claim for untimely EEO Counselor contact. We find that the actions described by Complainant were discrete acts which should have placed Complainant on notice to contact an EEO Counselor within 45-days of the incident. The record shows that Complainant contacted an EEO Counselor on July 16, 2010, while these claims occurred from 2004 to April 2010, which places all five claims well beyond the 45-day time limitation period. We also find that no justification was presented for extending the time limitations. Even if these matters were timely, we would still not find that a hostile work environment existed. We do not find these issues to have been severe or pervasive enough to have altered the conditions of Complainant's employment nor do find evidence that they occurred because of Complainant's race, sex, previous EEO activity or disability.
Accordingly we find that the preponderance of the evidence of record does not establish that discrimination occurred. Therefore, we hereby AFFIRM the Agency's finding that Complainant failed to show that discrimination occurred.
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
___5/9/13_______________
Date
1 Complainant identified his disability as severe panic disorder with agoraphobia, major recurrent depression and an allergy to strong scents.
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2
0120112979
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013