01981056
01-05-2000
Alexander C. Leonardo, Complainant, v. Alexis M. Herman, Chairwoman, Pension Benefit Guaranty Corporation, Agency.
Alexander C. Leonardo v. Pension Benefit Guaranty Corporation
01981056
January 5, 2000
Alexander C. Leonardo, )
Complainant, )
) Appeal No. 01981056
v. ) Agency Nos. 97-1
) 97-3
Alexis M. Herman, )
Chairwoman, )
Pension Benefit Guaranty )
Corporation, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency decision
(FAD) concerning his complaints of unlawful employment discrimination
on the bases of race (Caucasian), color (white), sex (male), reprisal
(prior EEO activity) and age (DOB: 1/10/42), in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.<1>
In his first complaint, complainant alleged he was discriminated
against on the bases of race, color, sex and age, when the agency:
(1) reassigned him from the position of Controller, Manager of the
Controller Division, to the position of Special Assistant to the Chief
Financial Officer (CFO); (2) assigned him to continuous details; and (3)
subjected him to a hostile work environment when he was: (a) assigned to
a position of significantly lower level in the organizational structure;
(b) assigned significantly diminished duties and responsibilities; (c)
afforded a reduced opportunity for consideration of pay adjustments,
awards, bonuses and promotions; and (d) subjected to a general pattern
of personal and professional diminishment.
In his second complaint, complainant alleged that he was discriminated
against on the aforementioned bases, as well as reprisal for prior
EEO activity, when: (1) the Director, Financial Operations Department
(FOD)(Caucasian male, DOB: 3/1//47) designated the Deputy Director of FOD
(Black female, DOB: 8/4/46) as his immediate supervisor; (2) without prior
discussion with complainant, the Deputy Director of FOD informed him that
the Premium Compliance and Review Program (PCR) would no longer use W-2's;
(3) the Director and Deputy Director of FOD rejected complainant's
compromise about the use of W-2's; (4) the Director of FOD relieved
him of his responsibilities as Program Manager of the PCR and assigned
him to the "New Premium System Request for Proposals" project; and (5)
the Deputy Director of FOD referred to complainant's "inflexibility" in
his quarterly performance evaluation, which complainant believed was a
part of an attempt at "creating an inaccurate record of inflexibility in
his 1997 performance evaluation." The appeal is accepted in accordance
with EEOC Order No. 960.001. For the following reasons, the agency's
decision is AFFIRMED.
ISSUE PRESENTED
Whether complainant has proven, by a preponderance of the evidence,
that he was discriminated against as referenced above.
BACKGROUND
The record reveals that during the relevant time, complainant was
initially employed as a Controller, Manager of the Controller Division,
FOD. Complainant alleged that in May 1994, the CFO, (Black male, DOB:
10/6/47), reassigned him from his position as Controller to the Special
Assistant to the CFO position. Complainant averred that when he was
reassigned, he was awarded a raise, which was later rescinded due to
administrative error. On October 19, 1994, while reviewing his personnel
file, he discovered that since May 2, 1994, he had been assigned to
temporary details with unspecified duties.
Complainant also alleged that when he was removed as Controller in
May 1994, he was placed in a clerical cubicle, where he remained for
six months, until the project to which he was assigned was completed.
Thereafter, he was moved to a small, interior office for another six
months. From there, he was moved to a "small one windowed" office for
approximately one and a half years. In May 1996, he complained to the
CFO about the size of his office. On September 26, 1996, complainant
contacted an EEO Counselor with respect to the subject complaint,
and also complained to the EEO Counselor about the size of his office.
According to complainant, his new office was not finished until October
or November of 1996, as the Facilities and Services Department needed
to demolish an adjoining office in order to enlarge his office to be
consistent with Grade 15 non-supervisory standards.
The complaints largely allege that the CFO, Deputy Director and Director
of FOD, have created an atmosphere which favors Black employees over
White employees in personnel actions such as hiring, and promotion, as
well as disciplinary actions. Complainant averred that his professional
reputation has been diminished by a pattern and practice of discriminatory
and harassing personnel actions by management officials. He stated
that the general office atmosphere illustrates management's position
that it is acceptable to discriminate against whites in order to remedy
prior discrimination.
Believing he was a victim of discrimination, complainant sought EEO
counseling on September 26, 1996, and February 6, 1997. On November 6,
1996, and March 19, 1997 he filed formal EEO complaints. The agency
accepted the complaints as described above and consolidated the complaints
for investigation. At the conclusion of the investigation, complainant
requested that the agency issue a final agency decision.
On October 24, 1997, the agency issued a final decision on both of
complainant's complaints. With respect to his first complaint, the agency
found that complainant had not made timely contact with an EEO Counselor,
and thus, dismissed his complaint. Specifically, the agency found that
complainant's allegations of reassignment, continuous details, substandard
office space, and the "phantom raise" which was later corrected due to
administrative error, as well as assignments of lower responsibility, had
all occurred in 1994 or early 1995. Therefore, applying the "reasonable
suspicion" standard, the agency found that complainant should have had a
reasonable suspicion that he had been discriminated against well before
the time he made EEO Counselor contact on September 26, 1996.
Complainant argued that he was not aware that he had been discriminated
against until September 16, 1996, when the Administrative Manager of FOD
told him that no new office space would be provided to him. Although the
agency acknowledged that complainant made timely EEO contact with respect
to this conversation, it found that his allegations did not represent a
"continuing violation" since each of the events described had a degree
of permanence such that a reasonable suspicion should have been triggered
long before September 26, 1996.
Furthermore, the agency found that the only timely event, that he was
told on September 16, 1996 that his office space would not be enlarged,
was rendered moot when the agency ultimately enlarged the office space
in October or November of 1996. Accordingly, the agency dismissed
complainant's first complaint due to his failure to make timely EEO
Counselor contact. Assuming, for the sake of argument that complainant
had made timely EEO Counselor contact, the agency also addressed
complainant's first complaint on the merits, finding no discrimination.
With respect to complainant's second complaint, the agency found that
complainant's allegations failed to state a claim. In the alternative,
the agency found that complainant could not establish a prima facie
case on any bases. The agency's decision regarding complainant's second
complaint, as well as complainant's contentions on appeal and the agency's
response thereto, will be discussed below.
ANALYSIS AND FINDINGS
First Complaint
64 Fed. Reg. 37, 644, 37, 656(1999)(to be codified and hereinafter
referred to as 29 C.F.R. � 105(a)(1)) requires that complaints of
discrimination be brought to the attention of the 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. The Commission has adopted
a "reasonable suspicion" standard (as opposed to a "supportive facts"
standard) to determine when the forty-five (45) day limitation period is
triggered. See Ball v. USPS, EEOC Request No. 05880247 (July 6, 1988).
Thus, the time limitation is not triggered until a complainant reasonably
suspects discrimination, but before all the facts that support a charge
of discrimination have become apparent.
Upon careful review of the record, we find that complainant's allegations
in his first complaint are untimely. Complainant contacted an EEO
Counselor on September 26, 1996, and his allegations of discrimination
occurred in 1994 and 1995, making complainant's September 26, 1996 EEO
contact well after the time period for Counselor contact established
by EEOC Regulations. EEOC Regulations provide that the agency or the
Commission shall extend the time limits when the individual shows that
he was not notified of the time limits and was not otherwise aware of
them, that he did not know and reasonably should not have known that
the discriminatory matter or personnel action occurred, that despite
due diligence he was prevented by circumstances beyond his control from
contacting the Counselor within the time limits, or for other reasons
considered sufficient by the agency or the Commission.
On appeal, complainant argues that he contacted an EEO Counselor in
March 1995, but was discouraged from filing a complaint, and that the
EEO Counselor told him that "he did not have a discrimination claim."
He argues that since he was advised not to file a complaint, his
untimeliness should be equitably tolled. In the alternative, complainant
argues that his complaint was timely filed, and that his allegations
represent a continuing violation.
In response to complainant's appeal, the agency denies that complainant
was discouraged from filing a complaint, and provides a declaration
from the agency's EEO Counselor. Therein, the EEO Counselor states
that complainant contacted him in March 1995, and they discussed his
timeliness problem. She stated that she looked into his allegations and
spoke with management officials. Moreover, the EEO Counselor stated that
she advised complainant on his right to file a formal EEO complaint.
She denied telling him that he had no case or discouraging him in any
way from filing a complaint. Following their discussion, she stated
she did not hear from him again.
After a review of complainant's arguments on appeal, we find that
complainant had a reasonable suspicion of discrimination as early as
1994 and at the time of the incidents in question, but failed to seek
counseling until September 1996. Specifically, complainant alleged
that he was removed from his position as Controller and replaced by
the Deputy Director of FOD (Black female). In September 1994, a Black
male was competitively selected for the Controller position. Therefore,
complainant should have had a reasonable suspicion in May or September,
that he may have been reassigned due to a prohibited basis.
Also noteworthy is complainant's admission that he initially contacted
an EEO Counselor in March 1995.<2> Based on the evidence in the record,
we disagree with complainant's contentions that he was discouraged from
filing an EEO complaint. Rather, we find that complainant was informed
of his rights, but apparently came to his own conclusion that he would
not prevail due to the untimeliness of his allegations. From this prior
EEO Counselor contact, we find complainant clearly had prior knowledge
or suspicion of discrimination of some sort, yet elected not to exercise
his right to file an EEO complaint.
We also find that the allegations in the complaint do not comprise a
continuing violation. The Commission has held that the time requirements
for initiating EEO counseling could be waived as to certain allegations
within a complaint when the complainant alleged a continuing violation;
that is, a series of related discriminatory acts, one of which fell
within the time period for contacting an EEO Counselor. See McGivern
v. U.S. Postal Service, EEOC Request No. 05901150 (December 28, 1990);
Starr v. U.S. Postal Service, EEOC Appeal No. 01890412 (April 6, 1989).
A determination of whether a series of discrete acts constitutes
a continuing violation depends on the interrelatedness of the past
and present acts. Berry v. Board of Supervisors, 715 F.2d 971, 981
(5th Cir. 1983), cert. denied, 479 U.S. 868 (1986). It is necessary
to determine whether the acts are interrelated by a common nexus or
theme. See Vissing v. Nuclear Regulatory Commission, EEOC Request
No. 05890308 (June 13, 1989); Verkennes v. Department of Defense, EEOC
Request No. 05900700 (September 21, 1990); Maldonado v. Department of
the Interior, EEOC Request No. 05900937 (October 31, 1990). Should such
a nexus exist, complainant will have established a continuing violation
and the agency would be obligated to "overlook the untimeliness of the
complaint with respect to some of the acts" challenged by complainant.
Scott v. Claytor, 469 F. Supp. 22, 26 (D.D.C. 1978).
Relevant to the determination are whether the acts were recurring or were
more in the nature of isolated employment decisions; whether an untimely
discrete act had the degree of permanence which should have triggered an
employee's awareness and duty to assert his or her rights; and whether the
same agency officials were involved. Woljan v. Environmental Protection
Agency, EEOC Request No. 05950361 (October 5, 1995).
Further, it is important in determining whether a claim for a continuing
violation is stated, to consider whether an complainant had prior
knowledge or suspicion of discrimination and the effect of this knowledge.
Jackson v. Department of the Air Force, EEOC Request No. 05950780 (June
27, 1997). Incidents that are sufficiently distinct to trigger the
running of the limitations period do not constitute continuing violations.
See, Miller v. Shawmut Bank, 726 F. Supp. 337, 341 (D. Mass. 1989);
Cogen v. Milton Bradley Co./Hasbro Inc., 49 Empl. Prac. Dec. (CCH) 38,894
(D. Mass 1989). In Cogen, the court rejected the plaintiff's attempt
to apply the continuing violation theory to, among other allegations, an
assignment issue. The court stated that "discrete acts of discrimination
taking place at identifiable points in time" are not continuing violations
for the purpose of extending the limitations period. Id. at 58,757; see
also Edinboro v. Department of Health & Human Services, 704 F. Supp. 364,
367 (S.D.N.Y. 1988) (demotion not a continuing violation).
Complainant's only timely allegations concern his complaint to the
Administrative Manager regarding the size of his office. By contrast,
complainant's untimely allegations concern a reassignment, details with
"unspecified duties," the correction of a raise awarded to him based
on an administrative error, as well as general allegations that he was
assigned diminished duties, and did not receive consideration for pay
adjustments, awards and bonuses. We find, however that complainant's
specific allegations had the degree of permanence which should have
triggered his awareness and duty to assert his rights. Specifically,
as mentioned above, complainant was aware in May and September 1994 that
he had been replaced with individuals outside of his protected class.
Although complainant's details were in fact reoccurring in nature,
he became aware of this alleged discriminatory act on the same date,
October 19, 1994. Based on the foregoing, we find that the agency's
dismissal of complainant's first complaint was proper.
Turning to complainant's timely allegation, that he was discriminated
against when he was assigned to substandard office space, we disagree with
the agency's assessment that the allegation is moot, in that complainant
has requested compensatory damages based upon the alleged effects of
this agency action. We agree, however, with the agency's finding on
the merits that complainant was not discriminated against, as alleged.
Complainant failed to prove, by a preponderance of the evidence, that
the agency's minor delay in reassigning complainant to larger office
space was a pretext for prohibited discrimination.
Second Complaint
With respect to complainant's second complaint, the agency found in its
final decision that he failed to state a claim in that none of the issues
alleged raised an employment decision such as hiring, firing or promotion.
In the alternative, the agency found that complainant could not sustain
a prima facie case of discrimination on any bases.
In its decision, the agency found that, despite complainant's
allegation to the contrary, the Deputy Director of FOD was not appointed
complainant's supervisor. Rather, she, as the individual responsible for
the PCR, signed complainant's leave request and conducted complainant's
quarterly review in January 1997. As reason for this, the Deputy
Director of FOD averred that complainant's sole responsibility at the
time was to the PCR. Therefore, she was in the best position to review
his performance and determine if leave was appropriate.
With respect to complainant's allegation that the agency rejected
complainant's proposal regarding the use of W-2 forms in audits, but
accepted his co-worker's idea, the agency found that this was not meant to
undermine complainant's authority as he alleged. Rather, complainant's
idea was rejected on its merits since it was not in compliance with
agency directives.
The agency also found that the Deputy Director of FOD indicated that
complainant was "inflexible" in his quarterly rating, in order to make
him aware of her observations of his performance during her oversight
of the PCR. According to the agency, this notation was not meant to
"create an inaccurate record," but rather was a means to provide feedback
on his performance.
Finally, the agency found that complainant was removed from his position
as Program Manager of the PCR and assigned to the "New Premium System
Request For Proposals" project due to conflicts he was having with
colleagues and contractors. Specifically, the agency cited complaints
that complainant was untrustworthy, inflexible, and lacked the knowledge
needed in order to contribute to the project.
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), Loeb v. Textron, 600 F.2d 1003
(1st Cir. 1979); and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to retaliation cases),
and assuming arguendo, that complainant has established an inference
of discrimination, we will now examine whether he has proven that the
agency's reasons for its actions are a pretext for discrimination.
Although complainant alleged that he was discriminated against when the
Deputy Director of FOD became his supervisor, we find that the evidence
of record shows that complainant's supervisor remained the CFO, and not
the Deputy Director of FOD. In addition, we find the record supports the
agency's position that as the Deputy Director had operational oversight
over the PCR, she was in the best position to evaluate complainant's
leave requests and assess his performance.
With respect to complainant's allegation that the Deputy Director and
Director of FOD undermined his authority when they denied his suggestion
for the agency's use of the W-2, but agreed with a co-worker's idea,
we agree with the agency that this was by no means meant to undermine
complainant's authority. Rather, the evidence reveals that the Director
was instructed not to request W-2's during audits, and therefore,
instructed complainant that he could not do so. In response, complainant
stated that he offered a compromise, that being that the agency request
W-2's on field audits only. When this suggestion was rejected,
complainant relayed the discussion to the co-worker. According to
the co-worker's affidavit, he believed complainant misunderstood the
Director's instructions, and approached the Director about the use of
a form which provides summary information of W-2's useful in audits.
The use of this suggestion was approved.
As such, we find the preponderance of the evidence reveals that the
co-worker was merely clarifying what he believed complainant had
misunderstood. We find insufficient evidence in the record that this
was meant as a means to undermine complainant's authority, due to any
prohibited bases, as he alleges.
With respect to complainant's allegation that he was discriminated
against when the Deputy Director wrote that he was inflexible in
his performance appraisal, we find that complainant has presented no
persuasive evidence which would contradict the agency's reasons for this
action. Specifically, the Deputy Director, as well as other witnesses,
supplied several examples where they found complainant was not flexible
in his management.
Finally, with respect to complainant's allegation that he was removed
as Program Manager of the PCR and reassigned to the "New Premium System
Request for Proposals" project, we find that the agency articulated
legitimate, nondiscriminatory reasons for its actions, namely, that he
was not performing well, was not flexible, and was having interpersonal
problems with his co-workers and contractors. We find the record supports
the agency's conclusions. For example, witnesses stated that they did
not want to work with complainant due to past experiences where he was not
trustworthy. The Deputy Director of FOD averred that complainant was very
rigid in following written procedures without regard to the practicality
of those procedures. The Deputy Director of FOD also recalled that during
a meeting with Section 8a minority contractors, complainant referred to
the contractors as "you people." As a result, the Deputy Director of
FOD was approached by the contractors who complained about the incident.
With respect to complainant's allegations that the office atmosphere
was one permeated with favoritism towards Black employees over White
employees, we find insufficient credible evidence in the record which
supports complainant's contentions. Instead, management officials
denied complainant's allegations of race discrimination and supported
their positions with corroborating affidavits and documentary evidence.
Although complainant presented evidence from other individuals who
believed they were discriminated against on the bases of race, we find
the preponderance of the evidence reveals that the agency's actions
were for legitimate, nondiscriminatory reasons. Agency witnesses have
supplied e-mails which support the agency's position that complainant
was not flexible, and had interpersonal problems with agency employees
of all races. We find that after a careful review of all the evidence,
complainant's version of events is largely not credible, and thus,
we are not persuaded that the agency's reasons for its actions were a
pretext for discrimination or retaliation.
To the extent that complainant is alleging that the Director or
Deputy Director's actions constituted harassment, the Commission
notes that unless the conduct is severe, a single incident or group of
isolated incidents will not be regarded as discriminatory harassment.
See generally, Walker v. Ford Motor Co., 684 F. 2d 1355 (11th Cir. 1982).
Whether the harassment is sufficiently severe to trigger a violation
of Title VII must be determined by looking at all the circumstances,
including the frequency of the discriminatory conduct, its severity,
whether it is physically threatening or humiliating, or a mere offensive
utterance, and whether it unreasonably interferes with an employee's
work performance. Harris v. Forklift Systems Inc., 510 U.S. 17 (1993);
Rideout v. Department of the Army, EEOC Appeal No. 01933866 (November
22, 1995). Although complainant strenuously argues that he has been
subjected to discrimination and harassment due to his race, age, sex, and
reprisal, we find insufficient evidence in the record that the actions
alleged occurred in the manner alleged by complainant. Furthermore,
the preponderance of the evidence does not support complainant's
contentions that these actions rose to a severe or pervasive level,
or that the actions were based on any prohibited bases.
Accordingly, we find that complainant's alleged incidents do not
constitute reprisal discrimination or harassment. 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 find that complainant has not proven, by
a preponderance of the evidence, that the agency discriminated against
him as alleged. Accordingly, the Equal Employment Opportunity Commission
AFFIRMS the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
January 5, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
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.
2It appears from the record that complainant's EEO Counselor contact in
March 1995 was also not timely with respect to his allegations.