2020000901•EEOC Appeal 2020000901
Testo completo
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Saul B.,1 Complainant, v. Matthew P. Donovan, Acting Secretary, Department of the Air Force, Agency. Appeal No. 2020000901 Hearing No. 430-2019-00066X Agency No. 5V1C1800302 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the August 26, 2019, decision of an Administrative Judge concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.2 BACKGROUND During the period at issue, Complainant worked as a Unit Program Coordinator/Security Specialist, GS-7, at the Agency’s 4 Aircraft Maintenance Wing at Seymour Johnson Air Force Base located in Goldsboro, North Carolina. 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. 2 The record does not indicate that the Agency issued a final order indicating that it would fully implement the AJ’s decision. Pursuant to EEOC Regulation 29 C.F.R. § 1614.109(i), the AJ’s decision is the final Agency action
2020000901 2 On March 8, 2018, Complainant filed a formal EEO complaint claiming that the Agency discriminated against him and subjected him to a hostile work environment based on his disability (Post Traumatic Stress Disorder/“PTSD”) when on February 2, 2018, the Senior Master Sergeant (“SMSgt”) harassed Complainant by verbally assaulting him stating, “I’m sick of your f—ing shit” and “you must not give a f—k about your job,” aggressively pointed at him, stood up and chased him down the hall while continuing to say, “I don’t give a shit, go ahead and report me to the base commander, screaming his name is [SMSgt].” After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. On August 7, 2019, the AJ issued a Notice of Intent to Issue a Decision without a Hearing (“Notice”). Complainant and the Agency responded to the AJ’s Notice. On August 26, 2019, the AJ issued a decision by summary judgment, in favor of the Agency.3 The instant appeal followed. On appeal, Complainant, through counsel, asserts that the AJ incorrectly determined that SMSgt’s actions towards Complainant were not made because of Complainant’s disability, but “in spite of” Complainant’s disability. Complainant further argues that the SMSgt continued to yell, curse, and chase Complainant after Complainant revealed that he suffered from PTSD. Complainant also argues that the Agency failed to take prompt and effective remedial action to stop SMSgt’s discriminatory conduct. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. 3 The AJ summarily adopted and incorporated by reference her August 7, 2019 Notice as well as the Agency’s response to her Notice in the August 26, 2019 decision.
2020000901 3 On appeal, Complainant argues that the AJ erred in issuing summary judgment, asserting that there are material facts at issue. However, to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. While Complainant has, in a general sense, asserted that facts are in dispute, he has not pointed with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute that is material to the outcome of his claim. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. To establish a claim of discriminatory environment harassment, Complainant must show that: (1) she 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). In other words, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis – in this case, his disability. Only if Complainant establishes both of those elements – hostility and motive – will the question of Agency liability present itself. Our review of the record indicates that the AJ correctly determined that Complainant was not subjected to a hostile work environment. Complainant testified that in 2004-2005, a traumatic incident occurred while he was serving in the military. Because of this incident, Complainant explained that he was diagnosed in 2013 with PTSD. Complainant stated that his PTSD is a permanent condition that limited major life activity and he required monthly doctors’ visits to treat his condition.4 Complainant indicated that he verbally notified his former lieutenant commander (former supervisor) and the former Senior Master Sergeant (“FSMSgt”) that he had PTSD and they accommodated his condition by providing him an office. Complainant stated that he believed that FSMSgt informed SMSgt that he had PTSD when FSMSgt trained SMSgt for the senior master sergeant position sometime between 2016 – 2017. Additionally, Complainant stated that before the February 2018 incident, he asked SMSgt if FSMSgt had told him about his condition and SMSgt confirmed that he had. 4 We presume for purposes of analysis only, and without so finding, that Complainant is an individual with a disability.
2020000901 4 However, Complainant stated that he did not inform the lieutenant commander, his first level supervisor (“S1”), about his PTSD until immediately after the February 2018 incident. Complainant clarified that he did not submit any medical documentation, as requested by S1, regarding his condition until after the February 2018 incident. Complainant asserted that SMSgt’s actions on February 2, 2018, had a trigging effect on his PTSD and Complainant felt “assaulted” when SMSgt yelled, cursed, and chased him down the hallway. On the day in question, Complainant indicated that he asked SMSgt about obtaining an external hard drive and he also indicated that he wanted to complete his time card. Complainant further indicated that SMSgt told him that he needed to call him when he arrived and left work. Complainant then informed SMSgt that SMSgt was not his supervisor and he would email SMSgt about his arrival and departures. In response, Complainant stated that SMSgt “just started going off” and began yelling and cursing at him and Complainant asked SMSgt to stop because he had PTSD and that he would report him to the commander. Because of SMSgt’s actions, Complainant stated that he has been seeing doctors every week because his PTSD conditions worsened after the February 2018 incident. Specifically, Complainant stated that after the incident, he could not drive for a month, he had nightmares, he had to relocate his family, and he had to relearn how to interact and talk with customers. Complainant conceded that there were no incidents between him and SMSgt before or after February 2, 2018. Complainant explained that after the incident, he went home on medical leave, returned to the office until April 16, 2018, and SMSgt had retired by the time Complainant returned to the Agency. Subsequently, Complainant ended up leaving the Agency in July 2018 to take another position with the Department of the Navy in Hawaii. S1 confirmed that Complainant first notified him of his PTSD on February 2, 2018, immediately after the incident with SMSgt. S1 indicated that he did not believe that the dispute between SMSgt and Complainant had anything to do with Complainant’s disability. S1 explained that Complainant was not meeting the expectations of his unit and had performance issues earlier that year. Consequently, S1 indicated that in January 2018, he issued Complainant a leave abuse letter and he placed Complainant on a Performance Improvement Plan (“PIP”). S1 further explained that he had directed SMSgt, since S1 was out of the office in February 2018, to inform Complainant that he needed to sign in and out of the office for accountability purposes. Because S1 was out of the office on the day of the incident, S1 instructed another employee to drive Complainant home and initiate an investigation. S1 explained that the EEO office investigated the February 2, 2018 incident after Complainant filed an EEO complaint. S1 received the investigation report and determined that Complainant’s harassment complaint was unsubstantiated. Specifically, S1 indicated that the witness statements reflected that incident involved “an argument between two individuals that got heated.” S1 acknowledged that the witness statements indicated that Complainant informed SMSgt that he had PTSD and that SMSgt was triggering his symptoms. However, S1 determined that the discussion of Complainant’s leave abuse letter and PIP was what initiated the argument between Complainant and SMSgt.
2020000901 5 Considering the February 2, 2018 incident, even if true, Complainant has not shown evidence that his disability motivated management’s actions toward Complainant. The record supports that S1, who was not aware of Complainant’s disability, specifically instructed SMSgt to monitor Complainant’s attendance while S1 was away from the office. The record further supports that the altercation between Complainant and SMSgt originated from a discussion involving Complainant’s attendance that escalated when Complainant indicated that he would email, instead of call, SMSgt about his arrival and departure times. In response, Complainant stated that SMSgt “started going off” and then proceeded to yell and curse at Complainant. The record further indicates that Complainant neither informed S1 about his condition until after the February 2, 2018 incident nor did Complainant provide documentation regarding his condition until after February 2, 2018. Lastly, aside from Complainant’s assertion, there is no support in the record that SMSgt was aware of Complainant’s condition before February 2, 2018. Additionally, S1 indicated that an EEO investigation was conducted and the results of the investigation failed to substantiate that SMSgt’s actions toward Complainant were based on Complainant’s disability. In addition, the February 2, 2018 incident Complainant alleges is not sufficiently severe or pervasive to constitute hostile work environment/harassment in violation of the Rehabilitation Act. We note that the record supports that the alleged harassment was isolated to a single incident and Complainant concedes there were no other altercations between Complainant and SMSgt before or after February 2, 2018. The record supports that after the altercation, Complainant went home on medical leave and SMSgt had retired from the Agency when Complainant returned to the office. We have held that claims of isolated incidents of alleged harassment usually are not sufficient to state a harassment claim. See Phillips v. Dep’t of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Health and Human Services, EEOC Request No. 05940481 (Feb. 16, 1995). Further, Complainant has not shown that the terms and conditions of his employment were adversely affected by this isolated incident. The record supports that Complainant had performance issues before February 2, 2018, which continued after he returned to the office in April 2018. The EEO laws are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale, 523 U.S. 75, 81 (1998). Therefore, even accepting the February incident occurred as alleged by Complainant, we conclude that while SMSgt’s conduct was an unprofessional response to a dispute with Complainant, it was an isolated incident that did not amount to a violation of the Rehabilitation Act. CONCLUSION After careful review of the record, including Complainant's contentions on appeal, we find that Complainant failed to demonstrate that the Agency discriminated against him as alleged. The AJ’s decision, which we construe as the Agency’s final action, is AFFIRMED.
2020000901 6 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant’s request 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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.
2020000901 7 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 September 14, 2020 Date
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