0120141137
06-02-2016
Barrett V.,1 Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Natural Resources Conservation Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Barrett V.,1
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Natural Resources Conservation Service),
Agency.
Appeal No. 0120141327
Hearing No. 570-2013-00259X
Agency No. CRSD201200372
DECISION
On February 28, 2014, Complainant filed an appeal from the Agency's December 23, 2013, final decision (FAD) 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).2 For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
Whether the Agency (1) discriminated against Complainant on the basis of reprisal for filing the instant EEO complaint when it issued him a Letter of Warning, a Notice of Proposed Suspension, and a Notice of Intent to Offset Salary; and (2) subject Complainant to a hostile work environment on the basis of reprisal for alleged "verbal abuse and physical intimidation."
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an EEO Specialist at the Agency's National Resources Conservation Service, Civil Rights Division in Beltsville, Maryland. Complainant's first line supervisor (S1) (female, married, parent, disability, and prior EEO activity) was the Complaints Branch Chief, and his second line supervisor (S2) (male, married, parent, no disability, no prior EEO activity) was the Director of the Civil Rights Division.
On October 13, 2009, Complainant applied for the Complaints Branch Chief position but was not selected; S1 was selected for that position. In January 2010, Complainant alleged that the then Director of the Civil Rights Division saw him with a baby bottle carrier and called it a "woman's purse." In March 2011, Complainant alleged that he was not reimbursed for driving his personal vehicle downtown to deliver documents to S2.
In early July 2011, Complainant alleged that S2 began to ask him to join his private law practice. Complainant stated that he informed S2 that was not interested on September 7, 2011, and that S2 began to subject him to disciplinary action. On September 12, 2011, S1 informed Complainant that he would no longer be allowed to work an alternate work schedule (AWS), and would be required to work eight hours, five days per week. Complainant had previously had his AWS removed in January 2010.
On or around October 22, 2011, S1 announced that one of Complainant's co-workers (C1) would handle all the formal EEO complaints, which effectively stripped these duties from Complainant as the Formal Complaints Manager. On October 27, 2011, S1 issued Complainant an annual performance rating of Fully Successful. Complainant stated that he did not agree with the rating because his past two performance appraisals were Superior. Complainant alleges that soon after he received his Fully Successful rating, S2 asked if Complainant was interested in doing legal work outside of his federal duties. Complainant stated that after informing S2 that he was not interested, S2 replied that Complainant "would likely regret the decision."
On November 24, 2011, Complainant stated that he was subject to an "impromptu audit" of his work. He stated that S1 called him into her office to discuss the audit and that the request to review his files was not explained to him. On December 16, 2011, S2 issued Complainant a Letter of Warning for taking photos of clocks around the office. The letter stated that Complainant's actions were in violation 41 CFR 102-74.420, which outlines the parameters of taking photographs while on federal property. In late 2011, on an unspecified date, Complainant alleged that he was instructed to come into the office on one of his telework days to attend a meeting. Complainant stated that he could have participated in the meeting remotely.
On January 3, 2012, S1 denied Complainant's request to telework. She stated that all telework was prohibited until January 8, 2012. On March 9, 2012, Complainant received a Notice of Intent to Offset Salary for $475.80 because a corrected time and attendance report was submitted. Complainant stated that his attempts to get additional details about the changes were ignored. The Agency waived the requirement for Complainant to pay because he did not receive appropriate due process prior to his salary being reduced.
On March 12, 2012, Complainant stated that S1 instructed him to take notes during their staff meetings. On March 30, 2012, Complainant alleged that S1 came into his office after swinging the door open very hard. He sent S1 an email asking that S1 not use so much force when opening the door because he was concerned that he could get hurt if he was standing behind or near the door. In response, S1 requested that Complainant leave his door open ajar so that she could see into his office to ensure that she does not injure him with the door.
On June 1, 2012, S1 issued Complainant a Notice of Proposed Suspension for fourteen days. The notice contained five specifications of Failure to Follow Instructions; four specifications of Submission of Inaccurate Reports; and five specifications of Failure to Follow Policy and Guidance. On unspecified dates, Complainant alleged that he was the subject of office rumors; his work was subject to greater scrutiny; and that he was not acknowledged when performing the duties as Acting Branch Chief.
Complainant initiated EEO counseling on December 2, 2011, and on March 16, 2012, he filed a formal EEO complaint alleging that the Agency discriminated against him and subject him to harassment based on sex (male), marital status (married), familial status (parent),3 physical disability (Tuillio syndrome), and reprisal (instant EEO case), when:
1. on October 13, 2009, he applied for the Branch Chief position but was not selected;
2. on January 14, 2010, he was told that he could no longer utilize AWS;
3. on September 12, 2011, he was informed that his AWS was terminated, and he was assigned to a "straight eight" work schedule;
4. on October 22, 2011, S1 announced that C1 would handle all formal complaints, thereby stripping him of his duties as the Formal Complaints Manager;
5. on October 27, 2011, he received a "Fully Successful" rating on his annual performance evaluation, but was not provided a justification for the rating;
6. on January 3, 2012, S1 denied his telework request, stating that all telework was prohibited until January 8, 2012 (i.e., after the holiday season), but permitted several female employees to telework throughout the time period;4
7. on March 9, 2012, he was issued a Bill of Collection in the amount of $475.80, after an investigation of his time and attendance records was instigated by his supervisors, and he was charged as Absent Without Leave (AWOL) on various, unknown dates without the option of making up the time;
8. on June 1, 2012, he was issued a Notice of Proposed Suspension;
9. on an unspecified date, he was forced to cease teleworking to attend a meeting in person at the office, despite the feasibility of his participation by teleconference.
Complainant alleges additional incidents of harassment due to his protected bases when:
10. from June 2009 to December 2011, he was the subject of several office rumors;
11. on January 26, 2010, he was teased for carrying a baby bottle carrier, that several employees, including management, referred to it as a "woman's purse;"
12. on February 23, 2011, during a meeting, he was ridiculed for not sitting up straight, although he was suffering symptoms of his disability;
13. in March 2011, he was not reimbursed, nor received any other form of remuneration after he drove his personal vehicle downtown to deliver documents to S2;
14. in May 2011, he was forced to give his desk and workspace to another employee, despite the availability of another workspace in the same office;
15. on May 26, 2011, November 30, 2011, February 24, 2012, and other unspecified dates, he was disciplined for alleged improper or disrespectful conduct towards his supervisors and coworkers; however, those individuals were not reprimanded for harassing or aggressive conduct towards him;
16. from July to September 2011, S2 pressured him to leave federal employment so that they could start a private law practice;
17. on October 27, 2011, S2 asked him to perform legal tasks outside his federal employment, and when he refused, S2 told him that he would "likely regret that decision;"
18. on November 24, 2011, he was subjected to an impromptu "audit" of his work files and in response to his inquiry as to the reason, S2 stated, "I have the right to review your files when I want, and you need to understand that;"
19. in November or December 2011, S1 disclosed the reasons and circumstances of his taking leave pursuant to the Family Medical Leave Act to another employee;
20. on November 30, 2011, after refusing the offer of help from S2, he was told, "we'll see how that works out for you;"
21. on December 15, 2011, he was reprimanded for allegedly leaving work early on the day prior, in that his arrival, departure, and break times were constantly monitored;
22. on December 16, 2011, he received a Letter of Warning for taking pictures of his office phone display and wall clocks hanging in the general work area;
23. on February 21, 2012, and on other dates, his S1 would not speak to him, was non-cooperative, and refused to assist him with assignments, IT issues, and ordered or encouraged other employees to act in a same or like manner towards him;
24. on March 12, 2012, he was ordered to be the first official "notetaker" in a staff meeting;
25. on March 30, 2012, he was instructed to keep his office door ajar at all times;
26. on unspecified dates, he, along with other male employees, were not acknowledged as the acting supervisor when performing that role; and
27. on unspecified dates, his work was subject to greater scrutiny than others' work.
At the conclusion of 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 Equal Employment Opportunity Commission Administrative Judge. Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a FAD pursuant to 29 C.F.R. � 1614.110(b) on December 23, 2013. The FAD concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
The Agency assumed, without finding, that Complainant established a prima facie case of discrimination based on sex, disability, marital status, familial status, and in reprisal for protected EEO activity. The Agency then found that his managers articulated legitimate, non-discriminatory reasons for its actions.
For claim 1, Complainant's managers stated that he was not selected for the Branch Chief position because he did not make the certificate of qualified applicants. In regards to claims 2 and 3, S1 stated that Complainant's AWS was removed due to issues of Complainant arriving late. For claim 4, his managers stated that there is no position of "Formal Complaints Manager," and that they assigned him work that was within his position description. In response to claim 5, S1 stated that she gave Complainant a rating of Fully Successful because of his documented performance issues. For claim 6, S1 stated that all employees were informed that telework was temporarily suspended during the holidays, except for an employee who had a reasonable accommodation. In regards to claim 7, his managers adjusted his time and attendance record after determining that he was not at work for hours he claimed. For claim 8, Complainant was issued a proposed suspension due to his work deficiencies. As for claim 9, the Agency found that there was no substantiation to Complainant's allegation that he was required to come in for a meeting when he was teleworking. However, even if that had occurred, his managers stated that it was within their right to request that he attend a meeting in person, if needed. The Agency found that Complainant had not shown that the proffered reasons were pretext for discrimination.
For Complainant's allegation that he was subject to harassment based on his protected bases, the Agency found that even assuming that the alleged events were true, they did not create a hostile work environment because the events, alone or taken together, were not sufficiently severe or pervasive to alter Complainant's employment and create an abusive working environment. Additionally, the Agency found that his managers articulated legitimate, non-discriminatory reasons for some of the alleged incidents.
In response to incident 13, both S1 and S2 stated that they were not aware that Complainant used his own vehicle because there was an Agency shuttle that he could have used, and Complainant did he ask for reimbursement when he used his car. For incident 14, S1 and S2 stated that Complainant was not asked to give up his office space. In regards to incident 18, the "impromptu audit" was explained as a request for a file, which S1 noted was due to performance concerns. In response to incident 22, S1 stated Complainant was disruptive when taking photos. In regards to incident 24, S1 stated that the duty of note taker belonged to whoever was "acting," which would rotate among the staff members. Since Complainant was the current "acting," she informed him that he was designated the note taker. For incident 25, S1 stated that she requested that Complainant keep his door open ajar to his office because he complained to her that she could potentially injure him when opening the door.
Additionally, Complainant's managers denied any knowledge of, or engaging in, the alleged conduct set forth in incidents 10, 11, 12, 15, 19, 21, 23. The Agency also found that incidents 26 and 27 were not substantiated. With regards to incidents 16, 17, and 20, the Agency found that Complainant's allegations that S2 pressured him to join his private law practice were irrelevant because even if these allegations were true, there is no evidence that Complainant's refusal to join S2's practice resulted in any adverse action. Further, the Agency determined that many of these alleged incidents of harassment occurred prior to Complainant engaging in protected EEO activity. Accordingly, the Agency found that Complainant had not shown that he was subject to harassment based on sex, marital status, parental status, disability or in reprisal for his EEO activity.
Complainant filed the instant appeal, and the Agency filed an opposition brief on April 10, 2014, requesting that we affirm the FAD. On May 12, 2014, Complainant submitted a request to include an additional email chain as evidence. The emails, from September 2011, show S2 submitting a form to the Agency's National Ethics Program Manager regarding his request for approval of "Outside Activity." He alleges that the Agency blocked and withheld the email, which support his allegation that S2 harassed him by pressuring him to start a private law practice with him. Complainant also requests that the Commission order the Agency to produce other documents related to S2's request for approval for his outside activity. The Agency also submitted an opposition to his request to include new evidence on May 30, 2014. The Agency denies withholding the email and argues that the email has no bearing or relevance to the issues raised on appeal. Additionally, the Agency notes that Complainant has not shown that this email was not available to him during the investigation of his EEO complaint.
CONTENTIONS ON APPEAL
On appeal, Complainant alleges that Agency erred when it found that he was not discriminated against based on reprisal for his EEO activity.5 Specifically, Complainant argues that the Agency did not articulate legitimate, non-discriminatory reasons for issuing him the Letter of Warning; the Notice of Proposed Suspension; and the Intent to Offset Salary (Bill of Collections). Complainant also alleges that he can show that the proffered reasons were pretext for discrimination because his managers' testimonies were inconsistent, which "bring significant doubt to the truthfulness and veracity of the explanations provided." Lastly, Complainant alleges that the Agency erred when it did not determine that he was subject to a hostile work environment based on the "verbal abuse and physical intimidation" by his managers.
ANALYSIS AND FINDINGS
Standard of Review
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").
Disparate Treatment
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he must first establish a prima facie case 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Reprisal
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), Complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
The Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. EEOC Compliance Manual Section 8: Retaliation, No. 915.003, at 8-15 (May 20, 1998); See Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found "materially adverse," which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEO process).
As an initial matter, we deny Complainant's requests to (1) include the additional email as evidence; and (2) order the Agency to produce additional documents related to S2's outside activity. As a general rule, no new evidence will be considered on appeal absent an affirmative showing that the evidence was not reasonably available prior to or during the investigation or during the hearing process. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, � VI.A.3 (Aug. 5, 2015). Here, Complainant does not show that this September 2011, email was not available during the investigative process, and as such, this email will not be considered.
The Commission has the discretion to review only those issues specifically raised in an appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, 9-10 (November 9, 1999). We note that on appeal, Complainant only argued that Agency erred when it found that he was not discriminated against based on reprisal for his EEO activity. As such, we will not address his contentions that the Agency discriminated against him based on sex and disability. Additionally, the Commission regulations do not include discrimination based on marital and parental status; therefore, this decision will not address those claims.
Assuming, arguendo, that Complainant had established a prima facie case of reprisal discrimination, we find that the Agency articulated legitimate, non-discriminatory reasons for issuing the Letter of Warning; the Notice of Intent to Offset Salary; and the Notice of Proposed Suspension. While Complainant argues on appeal that his managers did not articulate legitimate, non-discriminatory reasons, we find that the record shows that they did.
In regards to the Letter of Warning, S2 stated that Complainant was taking photos around the office in a disruptive manner. S1 stated that Complainant went to the supervisors' space and disrupted the staff. Additionally, S2 stated that there is a sign clearly posted by the building entrance noting the regulation regarding taking photographs while on the premises.
For the Notice of Intent to Offset Salary, S2 stated that he recalled looking for Complainant around 3:30 or 4:00p.m. one afternoon, and that when he could not find him, S2 asked S1 if Complainant had left early. When Complainant, S1, and S2 met to discuss this issue, Complainant stated that his managers could pull his time records. S2 stated that he determined that Complainant was not working when he said he was working. Additionally, S1 stated that her staff was complaining to her that Complainant was always arriving late. S1 stated that she reviewed Complainant's time records and found that Complainant was often late.
At the time that S2 provided his statement for the EEO investigation, the proposed suspension was issued, but a decision had not yet been issued. S2 stated that the suspension was proposed by S1 because of Complainant's issues with his work; not following instructions; and being disrespectful towards his supervisors and co-workers. The record also contains an affidavit from a former co-worker, who described Complainant's work as "real lackluster;" noted that Complainant was late in submitting his weekly reports; and when questioned about his work, that Complainant "made excuses."
While Complainant alleges that a reprisal motive can be inferred due to the short period of time between the alleged adverse actions and his initiation of EEO counseling, this only establishes a prima facie case of reprisal discrimination, and once the Agency articulates legitimate, non-discriminatory reasons for its actions, Complainant bears the burden of showing that the reasons were pretext for discrimination. Additionally, Complainant argues that other employees who engaged in similar conduct were treated differently than he was. However, we note that he has not shown evidence that any employee who was similarly situated was treated more favorably than he was, and even if he had, this would only establish a prima facie case of disparate treatment. As discussed above, his managers articulated legitimate, non-discriminatory reasons for their actions, and Complainant needs to show that the proffered reasons were pretext for discrimination.
Complainant argues that S1's statements in her affidavit are contradicted by the comments in his FY2011 performance rating. Specifically, he notes that the comments in his performance appraisal state that Complainant "provides work on time or ahead of schedule;" turns in his cases "well within the 85-90% timeframe;" and that Complainant "displays a professional and courteous demeanor." Complainant argues that these comments are contrary to S1's statements made in her affidavit that his work is at a "trainee level;" that he misses deadlines; and that the work he completes is incorrect. However, we note that the comments in Complainant's performance rating regarding the timeliness of his work were for only one of the three elements in his performance appraisal plan, and that the comment made regarding his demeanor was made by S1 on May 26, 2011. Complainant's performance appraisal shows that S1 did not make any additional comments on October 26, 2011. Additionally, the record contains multiple emails from S1 to Complainant raising concerns about his work.
Complainant makes additional arguments that he alleges "bring significant doubt to the truthfulness and veracity of the explanations" provided by S1 and S2. For example, he states that S2 stated in his affidavit that the "real issue" behind the Letter of Warning was Complainant's time and attendance concerns, which are not mentioned in the Letter of Warning. However, we note that S2 did not state that in his affidavit. S2 stated that Complainant was issued the Letter of Warning because he took photos around the office, without permission, and was disruptive while doing so. Additionally, Complainant argues that he did not make the errors in his work that were cited in the proposed suspension, and that his alleged time and attendance issues were not included as a basis for his proposed suspension. However, even crediting all of Complainant's arguments, we find that Complainant has not shown that the real reason for his managers' actions was reprisal for his EEO activity. Accordingly, we find that Complainant has not shown that the Agency discriminated against him on the basis of reprisal for prior EEO activity when it issued him the Letter of Warning; the Notice of Proposed Suspension; and the Notice of Intent to Offset Salary.
Harassment
Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the Complainant's employment. See EEOC Notice No. 915.002, Enforcement Guidance on Harris v. Forklift Systems, Inc., at 3 (Mar. 8, 1994). To establish a claim of harassment a Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. United States Postal Service, EEOC Appeal No. 01965238 (Oct. 16, 1998).
In assessing whether the Complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. � 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N-915-050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). Generally, "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment." Kozak v. United States Postal Service, EEOC Request No. 01A63021 (Aug. 23, 2006); Battle v. United States Postal Service, EEOC Request No. 0120083387 (Feb. 4, 2010). Such conduct "must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and ... that the victim in fact did perceive to be so." Id.
On appeal, Complainant argues that the Agency erred when finding that he was not subject to a hostile work environment despite the "verbal abuse and physical intimidation" that he complained about. We find that, even assuming, arguendo, that the incidents occurred as Complainant described and were unwanted, he has not shown that the conduct occurred because of his sex, disability and reprisal for his EEO activity. We find that many of the instances of alleged harassment were related to Complainant's job duties, and that none of the incidents can be seen as verbally abusive or physical intimidation. Additionally, Complainant has not shown that the conduct had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment. Accordingly, we find that Complainant has not shown that the conduct was sufficiently severe or pervasive resulting in a hostile work environment based on sex, disability and in reprisal for his prior EEO activity.
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 final decision finding that Complainant had not shown that the Agency discriminated against him: (1) on the basis of reprisal for filing his EEO complainant when it issued him a Letter of Warning, a Notice of Proposed Suspension, and a Notice of Intent to Offset Salary; and (2) subject him to a hostile work environment based on his sex, disability, and in reprisal for his EEO activity.
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
__6/2/16________________
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.
2 The record shows that the FAD was not mailed to Complainant until January 7, 2014, and Complainant stated that he received the FAD on February 13, 2014.
3 The Agency processed Complainant's claims based on marital and familial status pursuant to Agency's Departmental Regulation 4300-007.
4 Complainant later withdrew this claim once he learned during the processing of his EEO complaint that the employee who was permitted to telework had a reasonable accommodation.
5 Complainant also argues that he was subject to reprisal for refusing S2's offers to join his private law practice and for filing a complaint with the Office of the Inspector General in December 2011. We note that the Commission defines protected activity as (1) opposing a practice made unlawful by one of the employment discrimination statutes; or (2) filing a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under the applicable statue. EEOC Compliance Manual on Retaliation, No. 915.003 at 8-11. C. 1 (May 20, 1998). As such, for the purposes of this decision, we will only consider Complainant's reprisal claim for filing his EEO complaint.
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