0120161678
10-14-2016
Alden G.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Alden G.,1
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Federal Emergency Management Agency),
Agency.
Appeal No. 0120161678
Agency No. HS-FEMA-01452-2013
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's November 16, 2015 final decision concerning an 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.
BACKGROUND
During the period at issue, Complainant worked as an Individual Assistance Applicant Services Specialist at the Agency's Federal Emergency Management Agency (FEMA), Regional Discovery Recovery Center (DRC) #41 in Staten Island, New York.
On June 15, 2013, Complainant filed a formal EEO complaint alleging that he was subjected to harassment sufficient to create a hostile work environment on the bases of sex (male) and in reprisal for prior EEO activity.
In support of his complaint, Complainant alleged that his Crew Leader (female) did not rate him in the element of "Cooperation" on his performance evaluation for the rating period of December 3, 2012 - March 23, 2013. While he received an overall satisfactory evaluation, he believed that the absence of a rating on the one element would harm him when seeking future employment. He said that when he questioned his evaluation, the Crew Leader responded, "I'm not afraid of you, you do not intimidate me." He also alleged that later, when he told the Crew Leader that he would not sign the evaluation, she responded angrily, ""you don't intimidate me. Just keep up with your shit." Complainant alleged that the Crew Leader was hostile much of the time, which he contends led to her reassignment to another workplace in late March 2013. As examples he said that she took it out on him when he objected to certain work assignments. He also stated that she asked him to clean a room at the Disaster Recovery Center so she could use it for a non-FEMA-related reason.
Complainant further alleged that he believed the Crew Leader harbored retaliatory animus towards him because on March 12, 2013, he attempted to file a hostile work environment claim, but the EEO counselor told him that he had a conflict of interest, and the matter would be referred to someone else, but that was never done.
Also in support of his claim of a hostile work environment, Complainant alleged that on March 8, 2013, a co-worker (female) told him, "do not worry about what I'm doing, get the fuck out of my face!" During the investigation of his complaint, the co-worker admitted to making this comment when she stated that Complainant was "pestering" her about seeing disaster assistance applicants. She said she was deployed to another location and away from Complainant's workplace on March 16, 2013. She claims she apologized to Complainant.
Finally, Complainant raised a concern that on May 2, 2013, when he attempted to file the instant complaint based on hostile work environment and retaliation, he was ignored and told that he had never attempted to file a complaint before.
During the investigation, the Crew Leader stated that in regard to Complainant's performance evaluation, she felt that Complainant should be rated unsatisfactory in the area of Cooperation under Element No. 7 because he engaged in uncooperative conduct towards her and other employees. The Crew Leader stated, however, the Disaster Recovery Center Manager instructed her to leave Element No. 7 blank in Complainant's rating rather than rating him as unsatisfactory. The Crew Leader stated that while she gave Complainant an overall satisfactory for Elements Nos. 1 - 6, she left Element No. 7 blank.
Further, the Crew Leader stated that during the relevant period, Complainant "was an extremely difficult employee. His conduct was abrasive and he was uncooperative, but his work performance was satisfactory. He was difficult to communicate with and interact with me and his co-workers."
Regarding the harassment claim, the Crew Leader denied subjecting Complainant to harassment. The Crew Leader stated that Complainant "was the employee who created the hostile work environment. Most of the employees within the DRC 41 did not have any interaction with him or avoided trying to have any interaction with him because of his disrespectful attitude and conduct."
Further, the Crew Leader stated that she attempted to counsel Complainant concerning his behavior "but when I made attempts to work with him and provide guidance he resist continuing in engaging in disruptive behavior. After a few attempts at counseling [Complainant], I stopped trying and deferred to the upper management officials to handle his conduct."
The Crew Leader stated at that time she was not aware of Complainant's purported protected activity until the EEO counselor contacted her in the instant complaint in May 2013, after she had already left Complainant's workplace.
The Center Manager (male) stated that March 23, 2013, was his first day. The Center Manager stated at that time he was informed that because the Crew Leader would be reassigned to a different division the next day, she was going to work on the staff evaluations that day. The Center Manager stated that the Crew Leader told him that she had several issues with Complainant's performance and planned rate his performance as "unsatisfactory." The Center Manager stated that since it was his first day on site, he asked the Crew Leader for documentation detailing the alleged element of the performance that she felt was unsatisfactory concerning Complainant.
Further, the Center Manager stated "unfortunately, [Crew Leader] failed to keep any records of the incidents or action items she states occurred that she had planned to use in evaluating the Complainant. I subsequently counseled [Crew Leader] on protocol for rating staff and the need for consistent documentation. I was not present during that rating period and couldn't attest to the complainants work performance, nor did I want [Crew Leader] to have rate him 'satisfactorily' under duress if she believed his performance was not satisfactory in the specific element of 'cooperation.'" The Center Manager stated that he then proposed that the Crew Leader leave Element No. 7 blank "to bring balance to the rating process. Both she and the Complainant agreed to this proposal and I assumed the matter was resolved."
Moreover, the Center Manager stated at the time he was not aware of Complainant's prior protected activity.
After the investigation of the claims, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant did not respond. Consequently, the Agency issued a final decision on November 16, 2015, pursuant to 29 C.F.R. � 1614.110(b).
In its November 16, 2015 final decision, the Agency found no discrimination or unlawful retaliation had been established. The instant appeal followed. Complainant makes no new contentions on appeal.
ANALYSIS AND FINDINGS
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, she must first establish a prima facie 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. See 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. See 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. See 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. See U.S. Postal Service Board 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).
Agency management articulated legitimate, nondiscriminatory reasons for its actions. Regarding Complainant's evaluation, the record reflects the Center Manager stated while the Crew Leader found Complainant to be uncooperative based on his conduct towards her and other co-workers, she failed to document specific instances when Complainant was not cooperative. Therefore, the Center Manager instructed the Crew Leader not to rate Complainant on that one element or place comments regarding this element on his evaluation. The record reflects that the Crew Leader rated Complainant "satisfactory" in all other elements, rated him satisfactory, and acknowledged that Complainant's performance was satisfactory. With regard to his retaliation claim, the Center Manager and Crew Leader averred that they were not aware of Complainant's prior EEO activity until after he filed the instant complaint, and after all the events he proffered in support of his discrimination claim. There is no evidence of record to dispute this assertion.
These reasons proffered by management are sufficiently detailed to articulate legitimate, non-discriminatory reasons for the disputed actions. Complainant failed to prove, by a preponderance of the evidence, that these proffered reasons were pretext designed to mask the true discriminatory or retaliatory reasons for the actions.
With regard to Complainant's hostile work environment claim, to establish a claim of hostile environment harassment, Complainant must show that: (1) he 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, to prove his harassment claim, 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 sex or prior EEO activity. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Here, Complainant simply has provided no evidence to support his claim that his treatment was the result of his sex or his prior EEO activity. As already noted, neither of the responsible management officials was aware of any EEO activity by Complainant until after the events at issue.
Finally, we note that Complainant raised several concerns about the processing of his EEO complaint. These are not independent claims, but must be examined in the context of this case. See 29 C.F.R. � 1614.107(a)(8). We do not find that these events, even if they occurred as asserted by Complainant, adversely affected the processing of his complaint. We note that the Agency did not procedurally dismiss his hostile work environment claim, but conducted an appropriate investigation and rendered a decision on the merits of his claim.
Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination or unlawful retaliation occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests 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 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 (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
October 14, 2016
__________________
Date
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.
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