Darrell K.,1 Complainant,v.G. Wayne Clough, Secretary, Smithsonian Institution, Agency.

Equal Employment Opportunity Commission

Oct 20, 2016

0120141178 (E.E.O.C. Oct. 20, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Darrell K.,1
Complainant,

v.

G. Wayne Clough,
Secretary,
Smithsonian Institution,
Agency.

Appeal No. 0120141178

Hearing No. 570-2014-00172X

Agency No. 13-08-040113

DECISION

Complainant filed an appeal from the Agency’s January 15, 2014, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. § 791 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 Desktop/POS
Support Technician II at the Agency’s facility in Washington, D.C. On April 1, 2013,
Complainant filed an EEO complaint alleging that the Agency discriminated against him on the
bases of his sex (male), disability (permanent back condition), and in reprisal for prior
protected EEO activity when: (1) from August 22, 2012 through March 1, 2013, he was
subjected to a hostile work environment; and (2) on December 5, 2012, management issued
him a leave restriction letter.

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.
0120141178

2
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 (AJ). Despite Complainant’s request for a
hearing, the Agency issued a final decision, dated January 15, 2014, concluding that
Complainant failed to prove that the Agency subjected him to discrimination as alleged. In
response, Complainant filed the instant appeal. On January 20, 2016, the AJ who had been
assigned to the case issued an order stating that because the Agency issued a final decision and
Complainant’s appeal was pending before the Office of Federal Operations, the request for a
hearing was denied.

ANALYSIS AND FINDINGS

As an initial matter we note that although Complainant argues about improprieties by the issuer
of the final decision, Complainant has provided no specific claims or evidence to show any
improprieties. Also, we find that the hearing request before an AJ was properly denied by the
AJ. The AJ found that Complainant failed to attend a meeting between the parties and the AJ.
The AJ also found that Complainant failed to provide requested documentation. On appeal,
although Complainant’s representative argues that he was given short notice for the meeting
and that the meeting was at an early time in the morning for him (7:00 am), he fails to claim
he could not attend the meeting and he fails to explain why he never notified the AJ that he
would not attend the meeting. Nor does Complainant claim that he ever provided the
documentation referred to by the AJ. Thus, we find that the AJ’s actions were within the AJ’s
discretion.

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, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Complainant must initially 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 Construction 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 804 n. 14. The burden then shifts to the Agency to articulate a
legitimate, non-discriminatory reason for its actions. Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
0120141178

3
preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000).

Here, we find that assuming, arguendo, Complainant established a prima facie case of sex,
disability, and reprisal discrimination, the Agency nonetheless articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, the record shows that Complainant
entered into his position in February 2008, and resigned his position, effective March 1, 2013,
while on Family Medical Leave Act (FMLA) leave. Complainant’s supervisor (S1) states that
in 2012, Complainant began using an excessive amount of emergency and unscheduled leave,
particularly in connection with weekends or at times when S1 was already on leave, which
made managing the workload of the office increasingly difficult. S1 states that he discussed the
matter with both Complainant’s second-line supervisor and the human resources business
partner (HRBS), and the HRBS states that after reviewing Complainant’s leave usage records,
she recommended that a leave restriction letter be issued. S1 issued the leave restriction letter
on December 5, 2012. Although Complainant contends that his leave requests were related to
his disability, this contention is not supported by the evidence of record. Complainant
subsequently requested, and was granted, FMLA paternity leave, effective December 31,
2012. We find that Complainant failed to show that the Agency’s actions were motivated by
discriminatory or retaliatory animus, or that the Agency’s articulated reasons for its actions
were pretextual.

With respect to Complainant’s claim of harassment, the Commission finds that under the
standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's
claim must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice
No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by the
Commission's determination that Complainant has not established that the actions taken by the
Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal
Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Finally, to the extent that Complainant
alleges that he was forced to resign because of the Agency's discrimination, the Commission
notes that the central question in a constructive discharge case is whether the employer,
through its unlawful discriminatory behavior, made the employee's working conditions so
difficult that any reasonable person in the employee's position would feel compelled to resign.
Carmon-Coleman v. Dep't of Def., EEOC Appeal No. 07A00003 (Apr. 17, 2002). As stated
above, we find that Complainant has not shown that the Agency's actions were motivated by
discriminatory animus, thus we find that Complainant cannot establish the necessary elements
to prove constructive discharge.

CONCLUSION

Based on a thorough review of the record, we AFFIRM the Agency’s final decision finding no
discrimination.

0120141178

4
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.

0120141178

5
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

October 20, 2016
Date