PTSD partially due to a noose in the workplace
PTSD partially due to a noose in the workplace.
Jewel Ford v. Department of the Army
05980506
June 12, 2001
.
Jewel Ford,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Request No. 05980506
Appeal No. 01960932
Agency No. 94070022
Hearing No. 320-95-8110
DECISION ON REQUEST FOR RECONSIDERATION
On March 24, 1998, Jewel Ford (complainant) timely initiated a request
to the Equal Employment Opportunity Commission (the Commission) to
reconsider the decision in Jewel Ford v. Department of the Army, EEOC
Appeal No. 01960932 (March 12, 1998). EEOC regulations provide that
the Commissioners may, in their discretion, reconsider any previous
Commission decision. 29 C.F.R. § 1614.405(b). The party requesting
reconsideration must submit written argument or evidence which tends
to establish one or more of the following two criteria: the appellate
decision involved a clearly erroneous interpretation of material fact
or law; or the decision will have a substantial impact on the policies,
practices or operations of the agency. Id. For the reasons set forth
herein, complainant’s request is granted.
Our previous decision dismissed complainant’s appeal because complainant
filed a civil action in the Federal District Court for the District
of Colorado, identified as Civil Action No. 97-S-1631. Pursuant to 29
C.F.R. § 1614.409, the filing of a civil action shall terminate processing
of an appeal. Complainant argues that we erred in dismissing his
appeal because the issues which were before the District Court, were not
identical to those previously appealed to the Commission. In support of
this argument, complainant submits the District Court’s Findings of Fact
and Conclusions of Law, which was not previously available for review.
Dismissal of the EEO complaint is appropriate only where the issues
in the complaint and before the District Court, are identical. Bellow
v. USPS, EEOC Request No. 05890913 (November 27, 1989). Upon review of
the record, we conclude that the complaint concerns different issues
from those decided by the District Court. The issues in the instant
complaint concern allegations of harassment which occurred between 1985
and 1994. In contrast, the issues which were before the District Court
primarily concern a noose that was hung from the ceiling over the chair
where complainant sat on August 8, 1996. The District Court’s Findings
of Fact and Conclusions of Law do not include findings relative to the
harassment which allegedly occurred between 1985 and 1994. Since our
previous decision dismissed complainant’s appeal, the Commission has
not yet addressed the merits of his complaint. Therefore we reopen
the administrative forum to complainant’s appeal. Quintero v. USPS,
EEOC Request No. 05920926 (January 7, 1993).
Complainant alleged that he was harassed 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.<1> on the bases of his race
(African-American), color (black), disability (post-traumatic stress
disorder (PTSD)), and reprisal (prior EEO activity protected by Title
VII and the Rehabilitation Act) when:
on April 11, 1994, the agency charged him with two hours of annual
leave for leaving work an hour and twenty minutes early on April 8, 1994;
on January 31, 1994, he was questioned about his assignment;
in January 1994, a co-worker was not reprimanded for writing offensive
graffiti and the graffiti was not removed for at least three months
while complainant was accused of damaging agency equipment;
co-workers were questioned about his whereabouts, what kind of vehicle
he drove to work, and where he parked;
in March 1994, he was prohibited from bringing his cellular phone with
him to work;
the agency failed to respond to complainant’s repeated requests not to
be supervised by an abusive agency official;
on March 1, 1994, his supervisor yelled at him to “get out, go get
another job, get the hell out!”
he was followed and watched and on April 11, 1994, he was accused of
“hot rodding” in his truck;
he was constantly, falsely, accused of incidents, including sexual
harassment in 1986 and 1989;
his assigned vehicle is frequently checked to see if it was clean;
in 1996 or 1997, an EEO counselor promised him that if he dropped
his complaint, harassment would stop and when complainant dropped the
pending complaint, the harassment began anew;
in May 1991, he was issued a letter of guidance concerning leave,
although he took leave to cope with ongoing harassment;
between September 1993 and January 1994, complainant was temporarily
promoted to the position of Garbage Truck Driver but, unlike a
non-Black employee similarly detailed, he was not paid the higher rate
of compensation during the detail;
he was followed and given directions by people who did not directly
supervise him;
he was told that he would receive a counseling letter if he did not
apologize for the March 1, 1994 incident, and
throughout the last ten years, he was continually asked “why don’t
you quit, get the hell out and get another job?” On April 12, 1991,
he filed an assault charge against one of his supervisors.
The record reveals that complainant, a Tractor Operator at the agency’s
Fitzsimons Army Medical Center in Aurora, Colorado, filed a formal EEO
complaint with the agency on May 26, 1994, alleging that the agency had
discriminated against him as referenced above. At the conclusion of the
investigation, complainant was provided with a copy of the investigative
report and requested a hearing before an EEOC administrative judge
(AJ). Following a hearing, the AJ issued a decision finding that the
agency’s failure to pay complainant at a higher rate between September
1993 and January 1994, when he was temporarily promoted to the position
of Garbage Truck Driver, was based upon his race, color, and reprisal
discrimination and ordered the agency to award complainant back pay,
compensatory damages and attorney’s fees. However, the AJ did not find
discrimination on any other basis. The final agency decision (FAD)
adopted the AJ’s findings of no discrimination, but found, contrary to
the AJ, that complainant had not been discriminated against with respect
to the agency’s failure to temporarily pay him at a higher rate during
the detail to the Garbage Truck Driver position. For the reasons which
follow, we reinstate the AJ’s finding.
ANALYSIS AND FINDINGS
Disability
We affirm the AJ’s finding that complainant failed to establish that he is
an individual with a disability within the meaning of the Rehabilitation
Act. Complainant contends that the Agency violated the Rehabilitation
Act when it failed to accommodate his PTSD by not assigning him to a
position in which he would have no contact with his supervisor (RMO).
In order to raise a disability discrimination claim under the
Rehabilitation Act, a complainant must establish that he is an “individual
with a disability” within the meaning of the statute. An “individual with
a disability” is one who: (1) has a physical or mental impairment that
substantially limits one or more major life activities; (2) has a record
of such impairment; or (3) is regarded as having such an impairment. 29
C.F.R. §1630.2. Major life activities include activities such as caring
for oneself, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working. 29 C.F.R. §1630.2(i). Complainant must
further demonstrate that he is a
“qualified” individual with a disability, meaning that he can perform
the essential functions of the “position such individual holds or
desires.” EEOC Regulation 29 C.F.R. §1630.2(m).
Complainant has failed to establish that PTSD substantially limits him
in any major life activity. We credit the testimony of complainant’s
psychiatrist who testified that PTSD did not substantially limit any
of complainant’s major life activities. Complainant’s psychiatrist
further testified that the alleged harassment at work did not
aggravate complainant’s PTSD. For the first time at the hearing,
complainant asserted that the agency failed to accommodate his anxiety
disorder, however, there is no evidence to establish that the anxiety
disorder substantially limited complainant in a major life activity.
Complainant’s PTSD and anxiety disorder, when analyzed together, have not
been demonstrated to substantially limit him in any major life activity.
Harassment
We affirm the AJ’s finding that complainant failed to demonstrate that
he was harassed on the bases of his race, color or prior protected
activity. Harassment of an employee that would not occur but for the
employee’s race, color, sex, national origin, protected activity, age,
disability, or religion is unlawful, if it is sufficiently patterned or
pervasive. Wibstad v. USPS, EEOC Appeal No. 01972699 (Aug. 14, 1998)
(citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)). The
Supreme Court has stated that, “[c]onduct 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 v. Forklift Systems, Inc., 510 U.S. 17, 22
(1993). 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,
510 U.S. at 21; EEOC Notice No. 915.002 (March 8, 1994), Enforcement
Guidance on Harris v. Forklift Systems, Inc. at 3, 6.
In reviewing the AJ’s factual findings we note that pursuant to 29
C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be
upheld if supported by substantial evidence in the record. Substantial
evidence is defined as “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Universal Camera
Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
With respect to a number of the incidents cited by complainant as
constituting harassment, the Commission finds no basis upon which
to disturb the AJ’s finding that he failed to refute the legitimate,
nondiscriminatory reasons proffered by the agency for the cited actions.
See Wolf v. United States Postal Service, EEOC Appeal No. 01961559
(July 23, 1998). The AJ concluded that complainant is a highly
sensitive employee who sees a great many exercises of supervisory
control as harassment. With respect to the remaining incidents, we
again decline to disturb the AJ’s conclusion that complainant failed
to establish that any of such incidents, except for the failure to
promote him during a detail assignment, occurred on the basis of his
membership in any protected class. We find that the challenged actions,
when viewed cumulatively, were not severe or pervasive enough to create
an objectively hostile work environment. The substantial evidence in
the record supports these conclusions.
We have considered the use of racial slurs in the workplace. These
racial slurs were not specifically raised in the instant complaint,
but were raised before the AJ at the hearing. The AJ found that
during 1991, co-workers used the phrases “uppity nigger” and “Black
SOB” in complainant’s presence. The AJ also found that supervisors used
racially offensive language out of complainant’s hearing. The AJ properly
considered whether these racial slurs created a hostile work environment.
We concur with the AJ’s conclusion that the racial slurs were not
sufficient to create a hostile work environment. In so finding, we
note that the comments were unaccompanied by any concrete agency action,
and appear to be isolated incidents which occurred approximately three
years prior to the filing of this complaint. We remind the agency that
racial slurs could, under different circumstances, justify a finding of
discrimination. See, e.g. Yabuki v. Department of the Army, EEOC Request
No. 05920778 (June 4, 1993).
Disparate Treatment
Notwithstanding the AJ’s conclusion that complainant failed to demonstrate
harassment, she determined that the agency’s failure to promote
complainant during a detail assignment was motivated by discriminatory
animus. In the absence of direct evidence of discrimination, the
allocation of burdens and order of presentation of proof in a Title VII
case alleging discrimination is a three-step process. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-803 (1973). First, complainant
must 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. Next,
the agency must articulate a legitimate, nondiscriminatory reason(s)
for its actions. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). If the agency is successful, then the complainant
must prove, by a preponderance of the evidence, that the legitimate reason
proffered by the agency was a pretext for discrimination. Id. at 256.
Regarding complainant’s assertion that the agency charged him with two
hours of annual leave for leaving work an hour and twenty minutes early
because of a stress headache on April 8, 1994, the agency responded
saying that complainant’s supervisor initially found him absent
without leave (AWOL), but later reclassified the leave appropriately.
The record reveals that complainant’s unplanned absence on April 8,
1994, created some confusion about his whereabouts. We find that placing
complainant on AWOL, until his leave status could be clarified, is a
legitimate and nondiscriminatory exercise of supervisory authority.
Complainant proffers no evidence from which we can conclude that the
April 8, 1994 leave classification was motivated by a prohibited factor.
Between September 1993 and January 1994, the agency detailed complainant
to the position of Garbage Truck Driver, but it did not temporarily
promote him or pay him at the WG-7 rate. Complainant alleged that
the agency’s decision not to promote him was motivated by race, color,
and reprisal discrimination. In 1992, the agency temporarily promoted a
White tractor operator to a garbage truck driver position and paid him at
the WG-7 rate during the detail. The agency articulated a legitimate
nondiscriminatory reason for not promoting complainant during his
detail; namely, a delay in paperwork and lack of agency funds in 1993-94.
However, we agree with the AJ’s finding that these reasons are unworthy
of belief. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
(2000) (the Supreme Court held that a plaintiff may show pretext,
by establishing a prima facie case and sufficient evidence to that
defendant’s explanation is unworthy of credence). The agency official in
charge of processing the paperwork promised complainant at various stages
that he was processing the necessary paperwork and that he could be paid
at the WG-7 rate. However, the agency is unable to prove that it even
began processing the necessary paperwork. The record establishes that
complainant’s immediate supervisors erected obstacles to prevent him from
being compensated at the WG-7 rate. We concur with the AJ’s finding that
the reasons proffered were a pretext for race and color discrimination
as well as retaliation for complainant’s prior protected activity, and we
therefore affirm the AJ’s finding of disparate treatment discrimination.
CONCLUSION
After a review of complainant’s request for reconsideration, the
previous decision, and the entire record, the Commission finds that
complainant’s request meets the criteria of 29 C.F.R. § 1614.405(b), and
it is the decision of the Commission to grant the request. Furthermore,
upon consideration of all of the record evidence, it is the decision
of the Commission to reverse our finding in Appeal No. 01960932 and
reinstate the AJ’s finding of race, color, and reprisal discrimination
only as it relates to the agency’s failure to promote complainant to
the WG-7 rate during his detail to the position of Garbage Truck Driver
between September 1993 and January 1994. Accordingly, we reverse the
agency’s final decision and remand the matter to the agency to take
remedial actions in accordance with this decision and the ORDER below.
There is no further right of administrative appeal on the decision of
the Commission on a Request to Reconsider.
ORDER
The agency shall compensate complainant retroactively for the salary
differential between WG-6 and WG-7, for the time he was detailed as a
truck driver, with interest.
The issues of compensatory damages and attorney’s fees and costs are
REMANDED to the agency. The agency shall conduct a supplemental
investigation of the compensatory damages issue. Complainant,
through counsel, shall submit a request for attorney’s fees and costs
in accordance with the Attorney’s Fees paragraph set forth below.
No later than sixty (60) days after the agency’s receipt of the
attorney’s fees statement and supporting affidavit, the agency shall
issue a final agency decision addressing the issues of attorney’s fees,
costs, and compensatory damages. The agency shall submit a copy of the
final decision to the Compliance Officer at the address set forth below.
The agency shall change complainant’s personnel records to reflect that
he was temporarily promoted during the detail.
The agency shall provide training to all the management officials
responsible for this matter in their duties and obligations under Title
VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. §
2000e et seq. This training must include the agency’s responsibility
provide a work environment free of racial slurs, epithets or racially
derogatory remarks.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled “Implementation of the Commission’s
Decision.” The report shall include supporting documentation of the
agency’s calculation of back pay and other benefits due complainant,
and the agency’s decision regarding compensatory damages, including
evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Fitzsimons Army Medical Center in
Aurora, Colorado copies of the attached notice. Copies of the notice,
after being signed by the agency’s duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled “Implementation of the Commission’s Decision,” within ten (10)
calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0501)
Compliance with the Commission’s corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency’s report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission’s
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. § 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission’s
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
“Right to File A Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS – ON APPEAL
RECONSIDERATION (M0701)<2>
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
June 12, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant’s representative
(if applicable), and the agency on:
________________
Date
______________________________
Equal Opportunity Assistant
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated ___________ which found that
a violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. §2000e et seq., has occurred at this facility.
Federal law requires that there be no discrimination or retaliation
against any employee or applicant for employment because of that person’s
RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, PRIOR EEO ACTIVITY or
PHYSICAL or MENTAL DISABILITY with respect to hiring, firing, promotion,
compensation, or other terms, conditions, or privileges of employment.
The Fitzsimons Army Medical Center in Aurora, Colorado, (hereinafter
referred to as “facility”) supports and will comply with such Federal
law and will not take action against individuals because they have
exercised their rights under law.
The facility has been found to have discriminated against an employee
on the bases of his race, color and reprisal for failing to promote him
during a detail assignment. The facility has been ordered to give the
supervisors involved training regarding the requirements of the law
referred to in this posting and to ensure that officials responsible
for personnel decisions and terms and conditions of employment will
abide by the requirements of all Federal equal employment laws.
The facility will not in any manner restrain, interfere, coerce,
or retaliate against any individual who exercises his or her
right to oppose practices made unlawful by, or who participates in
proceedings pursuant to, Federal equal employment opportunity law.
_________________________
Date Posted: ____________________
Posting Expires: _________________
29 C.F.R. Part 16141 The Rehabilitation Act was amended in 1992 to apply
the standards in the Americans with Disabilities Act (ADA) to complaints
of discrimination by federal employees or applicants for employment.
2 Since this is the first decision to consider the complaint on its
merits, the parties are given the right to request reconsideration.
