0120080673
06-09-2010
Danny R. Jones, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, (Natural Resources Conservation Service), Agency.
Danny R. Jones,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
(Natural Resources Conservation Service),
Agency.
Appeal No. 0120080673
Hearing No. 490200600163X
Agency No. NRCS200600103
DECISION
On November 20, 2007, complainant filed an appeal from the agency's
October 15, 2007 final order 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 appeal is deemed timely and is accepted
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the
Commission AFFIRMS the agency's final order.
ISSUES PRESENTED
Whether the Administrative Judge erred in finding that complainant
established a prima facie case of discrimination based on reprisal; and
whether the Administrative Judge should have ensured that complainant
was provided copies of the agency's internal investigations conducted
in September 2005 and April 2006.
BACKGROUND
At the time of events giving rise to this complaint, complainant
worked as a Geographic Information Systems (GIS) specialist at the
agency's Natural Resources Conservation Service (NRCS) facility in
Murfreesboro, Tennessee. His first level supervisor was A-1, Supervisory
GIS Specialist. A-2 was his second level supervisor, the State Resource
Conservationist. The record indicates that, on September 12, 2005,
complainant's co-worker (C-1) entered his office during work hours to
discuss work matters. C-1 alleged that she found complainant sitting
at his desk with his pants unzipped and his left hand covering his
penis. C-1 immediately left complainant's office and reported what she
had observed to the first co-worker she could find. Subsequently, she
spoke to A-1 who informed A-2 and C-2, who supervised C-1. A-1, A-2,
and C2 contacted the agency's Administrative Officer (AO) for Tennessee
to determine how to proceed.
That same day, September 12, 2005, A-2 obtained statements from
complainant, C-1, A-1 and C-2. Complainant was placed on administrative
leave for the remainder of the day. He remained on administrative
leave the next two days. During this period, management had his hard
drive removed from his computer in order to determine if he had stored
or accessed inappropriate material. Complainant was issued a different
computer prior to his return on Thursday, September 15, 2005. Files from
his old computer, that he requested, were forwarded to complainant on
September 23, 2005. Complainant had been scheduled to attend Spatial
Analyst training offered by the agency's National Employee Development
Center from September 19 through September 22, 2005. Given the situation,
however, complainant chose not to attend the training and his supervisor
agreed..
The agency's initial investigation could not determine whether complainant
had in fact engaged in the alleged conduct and he was notified of this
fact.1 Consequently, both the complainant and C-1 remained employed
with the agency and continued working in the same office.
On October 27, 2005, complainant contacted an EEO counselor,2 and,
on February 2, 2006, he filed an EEO complaint alleging that he was
discriminated against on the bases of race (African-American) and reprisal
for prior protected EEO activity under Title VII when:
1. On or about September 2005, the agency disclosed negative information
and false documents regarding him;
2. On or about December 2005, the agency denied his request to work from
home as a reasonable accommodation;
3. On or about September 2005 and continuing, his work production and
performance have been impeded due to a fragmented workstation;3
4. On or about September 2005 and continuing, the agency damaged his
reputation by accusing him of sexual misconduct, investigating him and
denying him access to the investigative report; and
5. From September 19-22, 2005, he missed training due to the work
environment.
On or about March 16, 2006, C-1 filed an EEO complaint alleging sexual
harassment and a hostile work environment based on complainant's actions.
Management ordered an independent, third-party misconduct investigation.
After C-1 filed her complaint, complainant, based on the direction of
the agency's Civil Rights Division that complainant and C-1 should not
work in the same office, was involuntarily reassigned to the agency's
Nashville office.
Afterward, the following claim was added to complainant's complaint.
6. On or about March 16, 2006, the agency retaliated against him by
encouraging C-1 to accuse him of sexual harassment a second time, which
resulted in a second investigation and his involuntary reassignment to
the agency's Nashville office.
With respect to claim (1), the agency maintained that management
acted in compliance with the agency's NRCS Sexual Harassment Policy in
investigating the alleged misconduct. Therefore the investigation was
justified as required under agency guidelines. Moreover, to the extent
that complainant contends that information was disclosed, management
testified that "one of the first things [they] discussed was the need
to keep it [complainant's alleged misconduct] confidential." Management
testified that "they kept the events of September 12, 2005, and the
investigation that followed and the results thereof in strictest
confidence."
With respect to claim (2), management testified that complainant did not
make a "reasonable accommodation" request on the basis of any mental
or physical disability. Instead, complainant informed management that
he wanted to work from home because he "sought to safeguard [himself]
from further harm."4
With respect to claim (3), management maintained that, pursuant to its
investigation into complainant's alleged misconduct, agency officials
were obligated to inspect his work station and equipment. Moreover, to the
extent that his work station was "fragmented," management maintained that
agency officials acted expeditiously to restore his computer, including
its original settings and files, to his work station. Further, management
testified that complainant was informed that the removal of his computer
would not adversely affect his performance evaluation rating. According
to management, complainant's post September 12, 2005 performance rating
was consistent with the ratings he had received in previous years.
With respect to claim (4), management testified, as was discussed
with respect to claim (1), that it was obligated by policy to conduct
an investigation into C-1's allegations and that it only disclosed
information to those who needed to know about the matter. To the
extent that complainant also alleges that he was denied a copy of the
September 2005 misconduct investigative report, management testified that
its actions were consistent with the recommendations of the agency's
national Employee Relations (ER) Branch. Management testified that
per the advice of the ER Branch, complainant was not entitled to a
copy of the investigative report because "it contained sensitive sworn
statements by other individuals and complainant was not entitled to
see these because no disciplinary action had been taken against him."
Accordingly, the agency maintained that management's actions were fully
consistent with agency policy which was applicable to all employees.
With respect to claim (5), management testified that it was complainant's
decision to not attend the September 19-22, 2005 training session. The
record indicates that complainant requested not to attend the training
because of "[his] stress level, humiliation, and [his] emotional
state." Moreover, management testified that the training at issue did
not directly relate to or impact complainant's work duties. Finally,
the record indicates that management provided complainant with the
opportunity to register for the training at a later date.
With respect to claim (6), management again cited its responsibility
to investigate sexual harassment allegations immediately. The AO
indicated that, once C-1 filed a formal complainant, the agency's Civil
Rights Division directed the completion of the second investigation and
complainant's reassignment to the agency's Nashville office. According to
the agency, the reassignment was initially temporary and was intended to
separate the accuser and the accused pending the outcome of its sexual
harassment investigation; however, the investigation recommended that
complainant and C-1 not work together.
At the conclusion of the EEO investigation of complainant's complaint,
complainant was provided with a copy of the report of investigation and
notice of his right to request a hearing before an EEOC Administrative
Judge (AJ). Complainant timely requested a hearing, and, on May 11, 2007,
the AJ, in granting partial summary judgment, dismissed the basis of race
on the grounds that there were no genuine issues of material fact and that
complainant could not make a prima facie showing of race discrimination
under either a disparate treatment or hostile work environment analysis.5
On May 18, 2007, the AJ held a full evidentiary hearing with respect
to complainant's retaliation claim and issued a decision on September
6, 2007. The agency subsequently issued a final order on October 15,
2007 adopting the AJ's finding that complainant failed to prove that he
was subjected to discrimination as alleged.
AJ's DECISION
In her decision, the AJ found that complainant had established a
prima facie case of reprisal discrimination. The AJ further found
that the agency had provided legitimate, nondiscriminatory reasons for
its actions. Specifically, the AJ found that given the nature of the
allegations, management had an obligation to investigate complainant's
alleged misconduct. Finally, the AJ found that complainant failed to show
that the agency's reasons were pretextual. Accordingly, the AJ found that
complainant had been discriminated against in reprisal for prior protected
EEO activity. The agency adopted the AJ's findings and determinations.
CONTENTIONS ON APPEAL
On appeal, complainant maintained, in pertinent part, that the AJ withheld
copies of the September 2005 and April 2006 internal investigative
reports from him; and he was adversely affected when, at various times,
three different AJs were assigned to preside over his case.
The agency argues on appeal that complainant's objections to the AJ's
decision are without merit. Specifically, the agency avers that the
agency did not use the "results from the misconduct investigations to
support any adverse action against complainant whatsoever." Accordingly,
the agency contends that the report had no bearing and the AJ's ultimate
decision.
ANALYSIS AND FINDINGS
Initially, we note that complainant does not, on appeal, specifically
challenge the AJ's decision regarding claim (2). Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (MD-110), Ch. 9,
Sec. IV(A) at p. 9-10 (November 9, 1999) provides that the Commission
has the discretion to only review those issues specifically raised
on appeal. Accordingly, we will not address claim (2) in the decision
herein.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held. An AJ's
credibility determination based on the demeanor of a witness or on the
tone of voice of a witness will be accepted unless documents or other
objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
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. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a 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. Department of the Air Force, EEOC Appeal No. 01A00340 (September 25,
2000).
Claims (1), (3), (4) and (5)
We find that the AJ erred as a matter of law, when she found that
complainant established a prima facie case of discrimination based
on reprisal. The matters at issue in claims (1), (3), (4) and (5)
occurred in September 2005. Complainant, however, did not contact an
EEO counselor until October 27, 2005.6 Therefore, as a matter of law,
we can not find that there was a nexus between his EEO activity and the
agency's actions being challenged in these four claims because the EEO
activity occurred after the agency's actions, not before. Accordingly,
we affirm the finding of no discrimination regarding these claims.7
Claim (6)
On appeal, complainant maintains that the AJ erred by withholding the
September 2005 and April 2006 internal investigation reports from him
while the agency had access to them before the hearing in his case.
We agree. At the beginning of the hearing, complainant's attorney was
told by the AJ that she would give him the opportunity to look at the
September 2005 and April 2006 investigation reports. Hearing Transcripts
(HT) at 11. The AJ indicated that she did not believe letting complainant
and his attorney review "it" would "destroy any confidentiality or
Privacy Act issues." Id. at 11 and 12.8 At the conclusion of the
hearing, complainant's attorney again requested "the opportunity to look
at the investigative file that deals with the March 2006 allegations."
HT at 192. At which time, the AJ stated that "I will produce it for you
within the next five days as soon as I get back to the office." Id.
According to complainant, who is no longer represented on appeal, he
did not receive copies of the reports. A review of claim (6) indicates
that complainant alleged that management, on or about March 16, 2006,
retaliated against him by encouraging C-1 to accuse him of sexual
harassment, a second time, which resulted in a second investigation and
his involuntary reassignment to the agency's Nashville office. Thus,
we find it reasonable that complainant would want to review these reports
to search for any inconsistencies between the earlier statements of C-1
and management and the testimony at the hearing.
In its appeal brief, the agency maintains that complainant offered no
evidence that: (1) he was harmed by not having the reports, because
the agency did not use the results from the misconduct investigation to
support any adverse action against him whatsoever; (2) he contacted his
attorney to see if the AJ provided him with a copy of the report; and
(3) he had tried to obtain a copy from the AJ. With respect to the
agency's first contention, we note the testimony of the AO that one of
the recommendations of the April 2006 internal investigation was that
complainant and C-1 not work in the same office because there was some
sexual misconduct. HT at 181. Although complainant's reassignment was
initially deemed temporary, the AO outlined several reasons for not
bringing him back to the Murfreesboro office, among them, the findings
of the investigation. Id at 183. Therefore, we find that the agency's
contention that complainant did not suffer an adverse action as a result
of the April misconduct investigation is without support in the record.
Regarding the agency's (2) and (3) contentions, we would agree that
complainant did not indicate whether he contacted his former attorney
or the AJ to obtain copies of the investigations. However, the agency
could have also contacted these individuals in order to determine whether
the attorney was provided copies or that the AJ, as she promised, mailed
copies of the report to the attorney. In the absence of evidence that the
AJ provided complainant with copies of the two misconduct investigation
reports, we will vacate the finding of no discrimination pertaining
to claim (6) and we will remand this matter back to the agency for a
supplemental investigation as set forth below.
With respect to complainant's second contention on appeal, we find no
persuasive evidence that his ability to proceed with his EEO complaint was
prejudiced by the fact that, at various stages in the process, three (3)
different AJs presided over his case. Complainant notes his disagreement
with the procedural rulings of the AJs, but there is no indication that
the AJs' abused their discretion with respect to these rulings nor is
there any evidence that the ruling would have been different had there
only been one AJ.9
CONCLUSION
After a careful review of the record, we AFFIRM the finding of no
discrimination with respect to claims (1), (2), (3), (4) and (5).
Regarding claim (6), we VACATE the finding of no discrimination. Claim
(6) is REMANDED to the agency to conduct a supplemental investigation
pursuant to the ORDER below.
ORDER TO SUPPLEMENT RECORD (B1208)
The agency is ordered to conduct a supplemental investigation, which
shall include the following actions:
The agency, within fifteen (15) calendar days of the date
this decision becomes final, shall ensure that copies of its
September 2005 and April 2006 internal investigative reports
concerning C-1's allegations of misconduct by complainant are
added to the record. Upon completion, the agency, within thirty
(30) calendar days, must provide the complainant with a copy of
its the supplemental record and issue a new final decision in
accordance with 29 C.F.R. � 1614.110(b).
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the complainant.
If the agency does not comply with the Commission's order, the complainant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,
1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled "Right to File A Civil
Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. 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 (T0408)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_____06/09/10_____________
Date
1 According to the EEO counselor's report, complainant placed this date
as being on October 13, 2005.
2 Prior to this, the record indicates that complainant had engaged in
EEO activity in May 2002 and March 2003.
3 Complainant alleged that when he returned to work, on September 15,
he found that papers on his desk and office furniture had been moved,
and that computer files, bookmarks and printer cables were missing.
Complainant felt that he lost important information because his computer
files had not been backed-up.
4Complainant's testimony indicates that his only medically documented
request for an accommodation was made in March 2003.
5 Complainant did not appeal this decision by the AJ.
6 The AJ mistakenly stated, on page 4 of her decision, that complainant
sought counseling on or about September 12, 2005.
7 We also find that complainant failed to show that a nexus exists between
his 2002 and 2003 EEO activity and the matters at issue. This is too
remote in time to establish a nexus between his prior EEO activity
and claims (1), (3), (4) and (5). See Clark County School District
v. Breeden, 532 U.S. 268 (2001) (The U.S. Supreme Court ruled that in
order to establish causality in reprisal cases, the time period between
the employer's initial knowledge of the prior protected activity and the
adverse employment action must be "very close;" a three month time period
not proximate enough to establish a causal nexus); see also Battaglia
v. FDIC, EEOC Appeal No. 01985358 (July 30, 2001)(holding that a two
year period between the EEO activity and adverse action was sufficient
to establish a causal connection).
8 Although the AJ used the term "it," we assume that she was referring
to both reports because she had earlier indicated that she had read both
of them and found that they "pretty much state the same thing." Id.
9 We note that EEOC Administrative Judges have broad discretion in
the conduct of hearings. See 29 C.F.R. � 1614.109(e); Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110)
at 7-8 to 7-14 (revised November 9, 1999); Bennett v. Department of the
Navy, EEOC Request No. 05980746 (September 19, 2000).
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0120080673
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080673