Alfonzo M.,1 Complainant,v.John J. Sullivan, Acting Secretary, Department of State, Agency.Download PDFEqual Employment Opportunity CommissionApr 11, 20180120160510 (E.E.O.C. Apr. 11, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alfonzo M.,1 Complainant, v. John J. Sullivan, Acting Secretary, Department of State, Agency. Appeal No. 0120160510 Agency No. DOS-0143-14 DECISION On November 30, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 12, 2015, final decision concerning his 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Program Analyst at the Agency’s Passport Services Directorate, Bureau of Consular Affairs, located in Fort Lauderdale, Florida. On June 17, 2014, and amended, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of race (Black), national origin (Haitian), sex (male), sexual orientation (heterosexual), religion (Christian), color (black), disability (anxiety, fear, panic, tremors), age (60), and reprisal (prior protected EEO activity) when: 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. 0120160510 2 (1) on February 14, 2014, he was issued an “unsuccessful” annual performance evaluation; (2) on April 17, 2014, he was suspended without pay for fourteen days; (3) on July 21, 2014, the Agency requested his health care providers fill out a form concerning his mental health; (4) on July 25, 2014, management required him to undergo a mental assessment; (5) his first-line supervisor (S1) has not provided him with a mid-year evaluation; (6) since January 2014, he has been denied reasonable accommodation(s) for his physical and mental disabilities; (7) the Agency did not approve his July 7th and August 6th requests to see a clinical psychologist; (8) on August 8, 2014, he received an unsuccessful rating on his mid-year evaluation; (9) the Agency did not approve his July 2014 request for an assigned Employee Consultation Services Counselor; (10) on August 1, 2014, the Agency did not approve his request for a twenty-five dollar ($25) refund for expenses incurred in his attempt to provide a medical form requested by the Office of Diplomatic Security; (11) on September 25, 2014, EEO/Diversity and Awareness Training was cancelled after he requested to participate in the training; (12) management officials denied him access to social workers in the Employee Consultation Services offices; (13) on February 17, 2015, he received an unsuccessful rating on his performance evaluation; (14) on March 10, 2015, his request for medical treatment was denied; (15) on March 13, 2015, he was counseled for improper personal conduct; (16) on March 16, 2015, he was denied counseling by Human Resources; and (17) on March 16, 2015, he was denied counseling by Diplomatic Security. 0120160510 3 After the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). We assume for the purposes of this decision that Complainant establishes a prima facie case of discrimination with respect to all claims alleged. However, we note that the record shows that despite two requests by the EEO investigator, Complainant failed to provide an affidavit in support of this complaint. Claim 1 – Unsuccessful Performance Appraisal The record shows that S1 and Complainant’s second-line supervisor (S2) affirmed that he was overtly noncompliant with any instruction given and frequently wrote and sent negative and inflammatory emails to a variety of people. S2 further asserts Complainant’s behavior was unprofessional. Aside from Complainant’s bare assertions, the record is devoid of evidence to 0120160510 4 establish that the Agency’s articulated legitimate, non-discriminatory/retaliatory explanation was a pretext or otherwise motivated by discriminatory/retaliatory animus. Claim 2 – 14-Day Suspension The record shows that on February 18, 2014, Complainant was issued a notification of proposed 14-calendar day suspension, dated February 18, 2014, for Improper Personal Conduct and Failure to Follow Instructions. The letter states that as early as 2009, Complainant had been instructed to refrain from using disrespectful, rude and insolent language in his writings that resulted in disciplinary action being issued to him in 2011. The referenced writings were rambling and offensive essays that Complainant had written and attached to emails sent to various members of management. Aside from Complainant’s bare, uncorroborated assertions, record is devoid of evidence to establish that the Agency’s articulated legitimate, non- discriminatory/retaliatory explanation was a pretext or otherwise motivated by discriminatory/retaliatory animus. Claims 3 & 4 – Mental Health Form and Assessment Requested S1 affirms that he was not involved in the request for Complainant’s health care providers to complete forms concerning his mental health nor was he involved in any request that Complainant undergo a mental assessment. Complainant does not identify who made either request and the record is devoid of evidence of discriminatory or retaliatory animus with respect to this claim. Claim 5 – Mid-Term Evaluation Not Provided S1 affirms that Complainant received 2013 and 2014 mid-year evaluations, but did not get his 2012 mid-year evaluation under a prior supervisor. S1 also asserts that as soon as he realized that Complainant’s previous supervisor failed to give Complainant his mid-year evaluation in 2012, he incorporated that review into his 2012 end of the year evaluation. Complainant does not establish that the failure to receive a timely mid-term evaluation in 2012 was motivated by discriminatory/retaliatory animus with respect to this claim. Claim 6 – Reasonable Accommodations Complainant fails to provide any information regarding his assertion that the Agency failed to accommodate his disability. The Disability and Reasonable Accommodation Division (DRAD) Chief asserts that Complainant requested reassignment, limited travel, and dexterity limitations due to tremors. The DRAD Chief also contends that Complainant was provided a right-handed ergonomic mouse; offered the use of the voice recognition computer program Dragon Naturally Speaking, which he declined; and offered an assistant to provide him help with maneuvering the mouse when he was taking training. The record supports the finding that the Agency engaged in the interactive process and provided various accommodations. While the record shows that Complainant was not granted reassignment, the record is devoid of evidence to support a finding 0120160510 5 that reassignment would have been an effective accommodation for Complainant’s disability, and we find that the Agency did not fail to reasonably accommodate Complainant. Claim 7 – Requests to See Clinical Psychologist Complainant does not provide information with respect to these requests. S1 affirms that Complainant did not make any such requests to him and has no information regarding the requests. S1 notes that Complainant did not need management’s approval to see a clinical psychologist. We find that the record does not support Complainant’s claim that such requests were made or that any alleged denial was motivated by discriminatory or retaliatory animus. Claim 8 – Unsuccessful Rating on Mid-Year Evaluation Complainant asserts that he received an unsuccessful rating on his mid-year evaluation. However, S1 contends that there is no rating category on a mid-year evaluation, pointing out that these evaluations are a narrative of the employee’s performance. The evidence in the record shows that S1 advised Complainant that his performance during the reporting period was unsatisfactory because he continued to send inappropriate and inflammatory communications despite being counseled on more appropriate forms of communication. We find sufficient documentary evidence in the record to support S1’s criticism of Complainant’s manner of communication. We also find that aside from the assertions in the formal complaint, the record is devoid of evidence to support a finding of pretext or that any responsible management official was motivated by discriminatory or retaliatory animus. Claims 9 and 12 – Denial of Employee Counseling Services Aside from Complainant’s bare assertions found in his formal complaint, the record is devoid of evidence to support the finding that management approval was required prior to obtaining employee counseling or that such approval was denied. Claim 10 – Refund Management asserts that Complainant never submitted the required forms to receive a refund for the costs associated with obtaining medical documentation. Complainant fails to present sufficient information to establish that the Agency’s legitimate non-discriminatory reason was a pretext or otherwise motivated by discriminatory/retaliatory animus. Claim 11 – EEO Training Canceled S1 asserts that he was working to coordinate the EEO training with the Office of Civil Rights (OCR) and that it was OCR’s decision to hold the training only in Washington, D.C. S1 notes that the Headquarters (HQ) support contractor was supposed to send invites only to the employees in Washington, D.C. S1 states that he was not included in Complainant’s email response to the HQ support contractor expressing an interest in attending the training and had no 0120160510 6 knowledge that Complainant expressed an interest in participating. We find the record devoid of evidence to establish that the Agency’s legitimate non-discriminatory reason was a pretext or otherwise motivated by discriminatory/retaliatory animus. Claim 13 – Performance Review Not Successful S2 asserts that Complainant did not accomplish any of his goals or objectives so she concurred with his “Not Successful” rating. She states that she considered the consistent email conversations between Complainant and S1 as demonstrating his unwillingness to complete assignments. S2 noted several incidents of unprofessional communication and asserted that Complainant failed to provide any evidence that he did not engage in the activity which was considered in his evaluation and warranted the downgrade. We find insufficient evidence in the record to establish that the Agency’s legitimate non-discriminatory reason was a pretext or otherwise motivated by discriminatory/retaliatory animus. Claims 14, 16 and 17 – Denied Medical Treatment and Counseling The record is devoid of evidence that Complainant was denied any medical treatment or counseling. However, even if such denials occurred, the record is devoid of evidence that such denials were motivated by discriminatory or retaliatory animus. Claim 15 – Counseling for Improper Personal Conduct S1 asserts that Complainant was counseled for failing to follow instructions, noting that he was previously suspended on two prior occasions for improper personal conduct of the same nature. We find insufficient evidence in the record to establish that the Agency’s legitimate non- discriminatory reason was a pretext or otherwise motivated by discriminatory/retaliatory animus. Hostile Work Environment Claim To establish a claim of 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 classes; (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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). Therefore, in order to establish his harassment claim, Complainant must show 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 0120160510 7 must also prove that the conduct was taken because of a protected basis. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. In his formal complaint, Complainant raises only vague allegations relative to his view of events but nothing to indicate that management took any actions relative to his protected classifications. In addition, the events described by Complainant do not include any vulgar, crude, or offensive language on the part of Agency personnel, and he does not claim to have been subjected to any unwelcome physical conduct. To constitute harassment, the conduct complained of must be objectively offensive. Routine work assignments, instructions, and admonishments do not rise to the level of discriminatory harassment. Complainant does not offer any substantive explanation as to why he believes that his membership in a protected group was a factor in the alleged hostile environment. The record is devoid of evidence that any management official was motivated by Complainant’s race, sex, color, national origin, age, religion, medical impairment, prior EEO activity, or sexual orientation. Accordingly, he has not presented sufficient evidence to show that he was subjected to a hostile work environment. A finding of a hostile work environment is also precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s decision finding that Complainant failed to prove his claims of discrimination and retaliation as alleged. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for 0120160510 8 reconsideration in which to submit a brief or statement in opposition. 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. Complainant’s request 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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. 0120160510 9 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 April 11, 2018 Date Copy with citationCopy as parenthetical citation