Alexander C. Leonardo, Complainant,v.Alexis M. Herman, Chairwoman, Pension Benefit Guaranty Corporation, Agency.

Equal Employment Opportunity CommissionJan 5, 2000
01981056 (E.E.O.C. Jan. 5, 2000)

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.