01A04806
08-14-2002
Christopher O'Meara, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Christopher O'Meara v. Department of Transportation
01A04806
August 14, 2002
.
Christopher O'Meara,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A04806
Agency Nos. DOT-1-95-1132
DOT-1-96-1056
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful 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 appeal is accepted pursuant to 29 C.F.R. � 1614.405.
The record reveals that during the relevant time, complainant was
employed as a Supervisory Airway Transportation Systems Specialist,
GS-1201-13 at the agency's Federal Aviation Administration, New
England Region, in Portland, Maine facility. Complainant sought EEO
counseling and subsequently filed two formal complaints alleging that
he was discriminated against on the bases of disability (non-paralytic
orthopedic), age (D.O.B. July 24, 1933), and reprisal for prior EEO
activity when:
he was not given an opportunity for promotion from June 10, 1989 through
August 1994;
on October 24, 1995, the agency did not inform him of a change in
standard operating procedures;
two leave slips for September 20-23, 1994 and October 18-21, 1994,
were denied on June 17, 1994;
on September 29, 1995, the agency did not temporarily promote him to
the position of Portland, System Service Center Manager; and
from August 28, 1992 through November 21, 1995, the agency subjected
him to a hostile work environment which resulted in his constructive
retirement.
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. Complainant did
not make an election.
In its FAD, the agency concluded that complainant failed to establish
that he was discriminated as alleged. The agency dismissed claims (1)
and (2). Further, as to claims (3) and (4), the agency found that it
articulated legitimate, nondiscriminatory reasons which complainant
failed to demonstrate were pretextual. Finally, as to claim (5),
the agency determined that complainant did not establish that he was
subjected to a hostile work environment.
On appeal, complainant contends that he had been subjected to a hostile
work environment which has caused him to have high blood pressure as well
as loss of sleep and appetite. He argues that agency officials continued
to berate and intimidate him. The agency requests that we affirm its FAD.
Dismissal
The agency dismissed claim (1) pursuant to 20 C.F.R. � 1614.107(a)(2).
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the agency shall
dismiss a complaint or a portion of a complaint that fails to comply
with the applicable time limits contained in � 1614.105, � 1614.106 and
� 1614.204(c), unless the agency extends the time limits in accordance
with � 1614.604(c). EEOC Regulation 29 C.F.R. � 1614.105(a)(1) provides
that an aggrieved person must initiate contact with an EEO Counselor
within forty-five (45) days of the date of the matter alleged to be
discriminatory or, in the case of a personnel action, within forty-five
(45) days of the effective date of the action. EEOC Regulation 29
C.F.R. � 1614.105(a)(2) allows the agency or the Commission to extend the
time limit if the complainant can establish that he/she was not aware of
the time limit, that complainant did not know and reasonably should not
have known that the discriminatory matter or personnel action occurred,
that despite due diligence complainant was prevented by circumstances
beyond his control from contacting the EEO Counselor within the time
limit, or for other reasons considered sufficient by the agency or
Commission.
Although complainant claimed that he was denied an opportunity to
function at a higher grade from June 10, 1989 through August 1994,
the agency's investigation found that during the relevant time period,
the last temporary promotion occurred on August 21, 1993. Complainant
contacted the EEO Counselor one year after the last promotion, well
beyond the prescribed time limit. Therefore, we find that the agency
properly dismissed the claim, however, claim (1) shall be considered as
background evidence in conjunction with claim (5) in which he alleged
he was subjected to a hostile work environment. See United Airlines,
Inc. v. Evans, 431 U.S. 553, 558 (1977).
As to claim (2), the agency dismissed this claim for failure to state a
claim under 29 C.F.R. � 1614.107(a)(1). The regulation set forth at 29
C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall
dismiss a complaint that fails to state a claim. An agency shall accept
a complaint from any aggrieved employee or applicant for employment who
believes that he or she has been discriminated against by that agency
because of race, color, religion, sex, national origin, age or disabling
condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal
sector case precedent has long defined an "aggrieved employee" as one
who suffers a present harm or loss with respect to a term, condition, or
privilege of employment for which there is a remedy. Diaz v. Department
of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
In claim (2), complainant alleged that the agency did not inform him
of a change in standard operating procedures. The agency found that
complainant's claim related to the agency's reorganization plan and
that he did not show how he was harmed. The record indicates that the
complaint was not about the reorganization plan but rather that the
agency changed complainant's supervisory responsibilities without just
cause based on his age, disability and prior EEO activity. Accordingly,
we determine that complainant stated a claim. Since the investigation
had been conducted on claim (2), we find that there is sufficient evidence
in order to render a decision on the merits.
Disparate Treatment
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he 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). The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency
has met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that
the agency acted on the basis of a prohibited reason. St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the
third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. U.S. Postal
Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
For the purposes of analysis, we assume complainant is a qualified
individual with a disability. Upon review of the record, we find that the
agency articulated legitimate, nondiscriminatory reasons for its actions.
As to claim (2), we find that the Manager averred that based on the
National Performance Review in 1995, there was a mandate to consolidate
within the regions in order to achieve broader supervisor/employee ratios.
Based on the mandate, a realignment plan was developed. Complainant had
interpreted the plan to require him to supervise other technicians.
The Manager stated that he attempted on several occasions to explain
and clarify complainant's misunderstanding of the reorganization chart.
The Manager indicated that complainant was not to supervise other
technicians and that he simply did not understand the intent or scope
of the chart. As to claim (3), his First-Line Supervisor at the time
averred that he denied the leave because he believed that complainant
was expected to attend scheduled Employee Involvement meetings which
conflicted with his requests. The issue was then taken to complainant's
Second-Line Supervisor who granted the leave. Finally, at the time of
the event alleged in claim (4), complainant was involved in the agency's
commissioning a new radar site. Therefore, management determined that
his involvement was more important and another individual was designated
as the acting supervisor.
Once the agency has articulated legitimate, nondiscriminatory reasons
for its actions, the burden shifts to complainant to establish that the
agency's reasons were pretext. Upon review we find that complainant
failed to meet his burden.
Hostile Work Environment
Complainant alleged that he was subjected to a hostile work environment
from August 28, 1992 through November 21, 1995, which resulted in
his constructive retirement. In addition to claims (1) through (4),
he indicated that a series of several other events contributed to the
harassment. He argued that in early 1992, he had a disagreement with
the Program Manager about the temperature of the unmanned building.
In July 1992, complainant had a disagreement with the Program Manager
regarding his usual parking space being occupied by another car. He also
asserted that his performance evaluation reviews from 1992 and 1993 were
lower than his three previous reviews. In 1994, complainant claimed
that he was temporarily detailed to the Bangor, Maine Sector office so
that management could make personnel changes, he was denied training,
and that several newspaper articles he posted on the bulletin boards
were defaced. Finally, in early 1995, he was accused of excessive use
of his personal car and of being difficult to find while on duty.
It is well-settled that harassment based on an individual's disability,
age, and prior EEO activity is actionable. In order to establish
a claim of harassment under those bases, the complainant must show
that: (1) he is a qualified individual with a disability covered under
the Rehabilitation Act, protected under the ADEA, and/or engaged in
prior EEO activity; (2) he was subjected to unwelcome conduct; (3)
the harassment complained of was based on his disability, age, and/or
prior EEO activity; (4) the harassment had the purpose or effect of
unreasonably interfering with his work performance and/or creating an
intimidating, hostile, or offensive work environment; and (5) there is a
basis for imputing liability to the employer. See Flowers v. Southern
Reg'l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); see also Fox
v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001); 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 on Harris v. Forklift
Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). For the purposes
of analysis, we assume complainant is an individual with a disability.
Upon review of the record, we find that complainant failed to establish
that the alleged incidents of harassment were based upon his disability,
age, and/or prior EEO activity. Accordingly, we find that complainant
failed to show that he was subjected to unlawful harassment.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the agency's
finding of no discrimination.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 14, 2002
__________________
Date