Ronald R. Lewis v. Department of Justice
03990043
February 17, 2000
Ronald R. Lewis, )
Petitioner, )
)
v. )
) Petition No. 03990043
Janet Reno, ) MSPB No. NY-0752-98-0307-I-1
Attorney General, )
Department of Justice, )
(Federal Bureau of Prisons), )
Agency. )
_______________________________)
DECISION
INTRODUCTION
On December 30, 1998, Ronald R. Lewis (the petitioner) initiated a
petition to the Equal Employment Opportunity Commission (the Commission)
for review of the final order of the Merit Systems Protection Board
(the Board) concerning his allegation of discrimination in violation of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. §791 et seq., and
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e
et seq.<1> The Commission accepts this petition in accordance with the
provisions of the Civil Service Reform Act of 1978, and EEOC Regulations
at 29 C.F.R. §1614.302 et seq.
ISSUE PRESENTED
The issue presented herein is whether the Board's determination that the
agency did not discriminate against the petitioner when he was removed
from the position of Correctional Treatment Specialist, GS-101-11,
effective May 20, 1998, constitutes a correct interpretation of all
applicable laws, rules, regulations, and policy directives, and is
supported by the record as a whole.
BACKGROUND
The petitioner was a Correctional Treatment Specialist, GS-101-11, at
the Federal Correctional Institution located in Ray Brook, New York.
The agency, by notice dated April 8, 1998, proposed removing him from
employment based on charges that: (1) he failed to follow instructions;
and (2) he failed to follow leave procedures. By decision dated May
15, 1998, the agency removed him from employment, effective May 20,
1998. After a hearing, a Board Administrative Judge (AJ) issued an
initial decision that found the agency did not discriminate against the
petitioner. The petitioner did not file a Petition for Review with the
full Board; therefore, the initial decision became final on December 1,
1998. This petition followed.<2>
According to the record, on October 27, 1997, the petitioner submitted
a note from his physician, Doctor-1, stating that he was unable to work
without restrictions due to an Acute Stress Disorder
and that he would be re-evaluated on November 3, 1997. After the
reevaluation, a second note was submitted, indicating that the petitioner
remained unable to work and would be evaluated again on November 17, 1997.
A third note, dated November 13, 1997, stated that the petitioner was
unable to return to full duty through November 30, 1997. By letter
dated November 18, 1997, A-1, the petitioner's immediate supervisor,
requested more detailed information about the petitioner's condition.
On November 29, 1997, Doctor-1 indicated that the petitioner was
undergoing psychotherapy for an "acute reaction" and that his anticipated
partial recovery and discharge dates were February 15, 1998 and April 1,
1998, respectively.
By letter dated February 27, 1998, A-1 informed the petitioner that his
sick leave was exhausted and his annual leave would be exhausted on March
18, 1998. A-1 told the petitioner that he could not support a request
for leave without pay without updated medical information indicating
the expected date of his return to duty. As previously noted, the most
recent medical information provided by the petitioner was dated November
29, 1997. Therefore, the petitioner was asked to provide the updated
medical information or return to work by March 18, 1998. The record
indicates that the petitioner did not return to work and did not submit
the requested medical information.
Subsequently, the agency charged that:
On March 4, 1998, [the petitioner] acknowledged receipt of a letter from
[his] Unit Manager advising [him] that [the Unit Manager] could not
support [the petitioner's] continued absence from duty without medically
based information from [his] physician, [Doctor-1]. The Unit Manager
specifically requested [Doctor-1's] determination concerning the expected
date for [the petitioner's] return to duty on a substantially full-time,
or part-time basis. [The petitioner was] advised to supply the requested
information, or return to work by March 18, 1998. As of this date, no
further medical documentation has been received, and [the petitioner]
failed to report for duty.
Since the petitioner had, at the time of A-1's letter, been absent from
the workplace for four months and had nearly exhausted his entire leave
balance, the AJ found that A-1's instructions were proper and he sustained
Charge (1). We note, however, that the AJ subsequently mitigated the
penalty from removal to a 45-day suspension without pay.
The petitioner, among other things, argued that his removal was based
on disparate treatment due to his disability, sex, religion previous
EEO activity and because of sexual harassment. We will address each of
these contentions along with the AJ's determinations below.
Disability <3>
In March 1998, the petitioner filed a claim for benefits with the Office
of Workers' Compensation (OWCP). According to the petitioner, his work
assignments aggravated leg and shoulder injuries that he suffered in
1978 while in the military. These injuries included the shortening and
curvature of his right leg, right shoulder dislocation and disfigurement,
and neurological pain and damage. He also indicated that he was a
disabled veteran with leg, shoulder, right side and facial injuries.
According to the petitioner, he had a 10% service connected disability
rating. The petitioner also maintained that working conditions at
the institution caused him to suffer stress, depression and anxiety.
As noted by the AJ, however, the petitioner did not submit medical
documentation with the copy of the OWCP claim he provided the Board.
The AJ, although finding that the petitioner had a number of physical
impairments, was not persuaded that he was disabled within the meaning
of 29 C.F.R. §1630.2(g). The AJ noted that the record contained only
general descriptions of the petitioner's physical impairments. He also
found that there was no evidence concerning: (1) whether there were
substantial limitations of any of the petitioner's major life activities;
(2) whether he had a record of a substantially limiting impairment;
or (3) whether he was regarded as having such an impairment. Finally,
the AJ found that there was no evidence establishing whether the mental
impairment diagnosed by Doctor-1 was temporary or transitory or whether
it was amenable to treatment.
Notwithstanding the above, the AJ, in pertinent part, found that the
agency articulated a legitimate non-discriminatory reason for removing
the petitioner. The AJ also found no persuasive evidence of pretext. The
AJ noted the petitioner's testimony concerning a Unit Secretary,
E-1, who allegedly made remarks relating to his shortened right leg.
According to the petitioner, she suggested he see a chiropractor and
called him "loppie" (for lopsided). The petitioner also maintained that
A-1 stated, on one occasion, that he was glad the petitioner was disabled
because it improved the Unit's statistics concerning affirmative action
hiring practices. E-1 denied making the disparaging comments attributed
to her. She did, however, acknowledge telling the petitioner that
he should consider being treated by a chiropractor, because she had
undergone this type of treatment. Additionally, A-1 maintained that he
never indicated that he was happy that the petitioner was disabled, but
rather he was pleased that the petitioner worked in the Unit because it
allowed them to have a good record on meeting their affirmative action
obligations. The AJ, assuming that the remarks were made as attributed
by the petitioner, found that E-1 was not involved in the petitioner's
removal and there was no indication her remarks were anything other than
stray comments in the workplace. With regard to A-1, the AJ found that
the comments did not reflect a desire to remove the petitioner, but to
keep him in the unit.
Sex
The petitioner testified that E-1 had been romantically attracted to him
for years and that because he rejected her advances, she caused problems
for him in the workplace. He noted such conduct as physically abusing
him, i.e., punching, kicking and pinching him. He also maintained that
her deficient work performance made his duties more difficult to perform.
Furthermore, he stated that E-1, who he maintained had problems working
with the other male staff members, constantly complained to A-1 about
him and his male coworkers. Because A-1 was not effective in dealing
with E-1, the petitioner maintained that he was forced to tolerate her
deficiencies and misbehavior, including violations of the Standards
of Conduct.
The AJ, in pertinent part, again took note of the agency's articulated
reason for removing the petitioner and found that the
matters he raised did not establish persuasive evidence of pretext.
In reaching this determination, the AJ noted E-1's testimony that she
did not have a romantic interest in the petitioner, but may have engaged
in "horseplay" in the office. She also denied physically abusing the
petitioner. A-1 also testified that E-1's violations of the Standards
of Conduct involved minor matters such as overusing the telephone and
using a government carrying bag for her personal belongings.
Sexual Harassment
According to the petitioner, from 1994 through 1997, E-1 became both
"sexually desirous and abusive" toward him and that he rejected her
advances. According to the petitioner, she invited him to her home, to
dinner, tried to accompany him to various places, brushed herself against
him while at work and touched his arms and legs. The petitioner indicated
that he objected to each of the above actions. He also stated that E-1
showed him pictures of herself before and after having Rhinoplasty and
in a bathing suit. Finally, the petitioner maintained that E-1 became
jealous when he began a relationship with another woman.
The AJ, in pertinent part, found that there was no nexus between the
alleged sexually harassing behavior of E-1 and the petitioner's failure to
comply with A-1's instructions that he provide updated medical information
or return to work by March 18, 1998.
Religion
According to the petitioner, he is a Presbyterian, while other staff
members in his unit, including A-1, were Catholics. Petitioner maintained
that A-1 once told him that Presbyterianism was not a religion. He also
maintained that in June 1997, someone placed, in his mailbox, a copy of an
article from a Roman Catholic religious newsletter. The article, a copy
of which appears in the record, discussed the Catholic Church's opposition
to assisted suicide. A-1 denied any involvement in this incident.
The AJ found that even assuming A-1 made the comments attributed to
him and that the petitioner received an unsolicited article on assisted
suicide, there was no basis for sustaining a claim of disparate treatment
concerning his removal from employment. According to the AJ, there was
no evidence that anyone connected with the petitioner's removal placed
the article in his mailbox. Even if such evidence existed, the AJ found
that it would not have established that the petitioner's religion was
a motivating factor in his removal.
Reprisal
Finally, the petitioner argued that his removal was also based on an
EEO complaint that he filed in July 1997. The record indicates that the
petitioner and E-1 became involved in a workplace dispute on June 6, 1997.
The dispute centered on her request that the petitioner keep certain
office doors closed due to cigarette smoke. The dispute eventually came
to involve a variety of matters concerning both E-1 and A-1. On July 18,
1997, the petitioner was summoned to a meeting with the Associate Warden,
A-2. A-2 maintained that the purpose of the meeting was to discuss the
petitioner's performance problems, which had recently been developing.
A-1 was also at the meeting. According to the petitioner, A-2 expressed
anger at him for continuing to pursue his dispute with E-1 and A-1.
Among other things, the petitioner alleged that A-2 told him that if
he, the petitioner, "wanted to go to war with me, [A-2], then we'll go
to war." A-1 and A-2 both denied that the comment was made.
Thereafter, the petitioner filed an EEO complaint alleging discrimination
based on sex, sexual harassment, religion and disability. He testified
that he continued to face scrutiny of his job performance and
was eventually placed on a performance improvement plan (PIP).
The petitioner, however, noted that in April 1997, he was given a
high performance rating and had received favorable comments about his
performance in July. After being placed on the PIP, the petitioner
informed B-1, the Director, Federal Bureau of Prisons, A-3, the Warden,
A-2 and A-1 that he thought he was being harassed because he had filed
the EEO complaint. He also requested administrative leave until his
EEO complaint was resolved. A-3 denied the request on September 16, 1997.
On September 17, 1997, A-2 recommended that the petitioner be investigated
by the Office of Internal Affairs (OIA). According to A-2, the petitioner
had engaged in abnormal and inappropriate behavior for a significant
period of time. The OIA investigation focused on allegations of
insubordination by the petitioner and his failure to follow instructions.
During the investigation, the petitioner's absences from work for medical
reasons began. Although the OIA investigation sustained the allegations
against the petitioner, a proposal for discipline was not made due to
his medical condition.
A-4, who replaced A-3 as Warden in December 1997, testified that
he was not aware of the petitioner's EEO complaint when he made the
decision to remove him from employment in May 1998. According to A-1,
the removal was not based on any factor other than the charges listed
in the notice of proposed removal. The AJ also noted the testimony
of three witnesses on the petitioner's behalf. C-1, who worked in the
agency's EEO program, but was not a counselor, who testified that she
thought that the petitioner's EEO complaint may have played a role in
his removal because his problems seemed to begin after the June 6, 1997
incident with E-1. C-1 had no specific evidence upon which to base her
opinion. C-2, a former EEO counselor, also testified that he thought
that the petitioner's removal was based on the EEO complaint he filed.
According to C-2, management made the petitioner a "project," and that
he has seen how the system works when someone becomes a project. Again,
the AJ noted that C-2 had no specific evidence to support his opinion.
C-3, a Case Manager, testified that management became aggressive with
the petitioner after he filed his EEO complaint and, in his opinion,
the petitioner was removed because of the complaint.
The AJ, after finding that the petitioner had established a prima
facie case of reprisal discrimination, found that he was unable
to establish that the agency's articulated reason for his removal
was pretextual. Additionally, the AJ found that there was no nexus
between the petitioner's May 1998 removal and his protected EEO activity.
According to the AJ, the removal involved leave-related charges stemming
from circumstances that were separate and distinct from the matters
at issue in the July 1997 EEO complaint. Finally, the AJ found that
there was no evidence that A-4, the new Warden, had a retaliatory animus
against the petitioner.
ANALYSIS AND FINDINGS
The Commission must determine whether the decision of the Board,
on the petitioner's allegations of discrimination, constitutes an
incorrect interpretation of any applicable law, rule, regulation or
policy directive, or is not supported by the evidence in the record as
a whole. After a review of the record, the Commission finds that the
Board's decision constitutes a correct interpretation of all applicable
laws, rules, regulations, and policy directives, and is supported by
the record as a whole.<4> Therefore, finding no basis for reversing
the Board's final decision, we concur with its determination.
CONCLUSION
Based upon a thorough review of the record, and for the foregoing
reasons, it is the decision of the Commission to CONCUR with the final
decision of the Board finding no discrimination.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W1199)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court,
based on the decision of the Merit Systems Protection Board, WITHIN
THIRTY (30) CALENDAR DAYS of 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.
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:
___02-17-00__ __________________________________
DATE Frances M. Hart
Executive Officer
Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________ __________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to
all Federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable,
in deciding the present appeal. The regulations, as amended, may also be
found at the Commission's website at WWW.EEOC.GOV.
2Since Charge (2) was not sustained by the AJ, we will only address Charge
(1) in this decision.
3The 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. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: WWW.EEOC.GOV.
4We note that, with respect to the AJ's finding that the petitioner
did not provide sufficient evidence to show he was disabled under
our regulations, we have examined the petitioner's disability claim
in light of the Supreme Court's recent decisions in Sutton v. United
Airlines, Inc., 527 U.S. , 119 S.Ct. 2139 (1999); Murphy v. United
Parcel Service, Inc., 527 U.S. , 119 S.Ct. 2133 (1999); Albertsons,
Inc. v. Kirkingburg, 527 U.S. , 119 S.Ct. 2162 (1999); Cleveland
v. Policy Management Systems Corp., 526 U.S. , 119 S.Ct 1597 (1999);
and Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196 (1998), and find
that the AJ's determination is in accord with those decisions.