0120170101
09-05-2018
Dudley H.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Agricultural Research Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Dudley H.,1
Complainant,
v.
Sonny Perdue,
Secretary,
Department of Agriculture
(Agricultural Research Service),
Agency.
Appeal No. 0120170101
Hearing Nos. 530-2015-00285X, 570-2014-01227X
Agency Nos. ARS-2014-00693, ARS-2014-001052
DECISION
On October 6, 2016, 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 September 27, 2016, 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 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 decisions.
ISSUE PRESENTED
The issue presented is whether Complainant established that the Agency subjected him to disparate treatment and harassment on the bases of race (African-American), color (Dark), age (54), or reprisal, as a result of several incidents that occurred in 2013 throughout 2014.
BACKGROUND
At the time of events giving rise to these complaints, Complainant worked as a GS-2005-05, Supply Technician at the Agency's Agricultural Research Service (ARS), North East Area (NEA) facility in Beltsville, Maryland.
Agency No. ARS-2014-00105
On January 13, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of age (54), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964; and the Age Discrimination in Employment Act of 1967 when:
1. On November 6, 2013, he received an annual performance appraisal rating of "Fully Successful," which allegedly eliminated his eligibility for a performance award; and,
2. On an unspecified date, he performed duties outside his official position description, although his supervisor "downplays" such work.
The Acting Facility Director, M1, is Complainant's first level supervisor and primary reviewing official. M2 is Complainant's second level supervisor, and secondary reviewing official, and the Acting Supervisory Project Manager. M3, is the Director of the Beltsville Agricultural Research Center (BARC).
M1 informed employees that the Agency would not be giving monetary awards based on performance evaluations. M1 testified that Complainant did not submit a list of accomplishments to her and had informed her secretary that he would not submit such since he was not going to get a monetary award. M1 further testified that she followed Agency precedent and gave Complainant a Fully Successful rating because he failed to submit a list of accomplishments for the fiscal year. In this regard, Agency policy dictated that employees cannot be rated higher than Fully Successful if they do not submit a list of their accomplishments. M1's testimony is supported by testimony offered by M1's secretary, M2 and M3. Moreover, the record contains an Agency directive concerning the collaborative process which should take place between supervisors and employees, and the employees responsibility to submit a list of their accomplishments. The directive further indicates that appraisals that exceed Fully Successful must contain documentation supporting a higher rating.
With respect to Complainant's claim that he performs duties outside his official position description, M1 testified, to the contrary, that he did not communicate such to her. M1 did acknowledge that Complainant communicated his belief that his job should be upgraded and that he was entitled to more money. The Area Property Management Officer similarly testified that Complainant does not perform duties outside of his position description. Additionally, a Human Resources Specialist conducted position audit interviews with M1 and Complainant and testified that, based on her evaluation, there was not support for Complainant's contention that he performed duties outside of his position description.
Agency No. ARS-2014-00693
On August 8, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), color (Dark), age (54), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964; and the Age Discrimination in Employment Act of 1967 when:
1. On November 4, 2014, he was issued a Letter of Reprimand (LOR);
2. On October 28, 2014, he received a Superior rating on his annual performance evaluation
3. On or about June 11, 2014, he learned that he had been accused of misconduct and was the subject of a related investigation, and that he was indefinitely restricted from entering "Building 002," which is where his accuser had temporarily worked and wherein he is occasionally required to perform some of his job duties; and,
4. On various dates, he was subjected to additional acts of harassment, such as:
a. On January 30, 2014, his supervisor singled him out by reminding him to submit a leave request for any time off he intended to take during the week;
b. On June 11, 2014, he was instructed not to send electronic mail to the "BA-ALL" electronic mail group; and,
c. On June 13, 2014, he was directed to correct the job title on his electronic mail signature block to accurately reflect his position.
In the second complaint, Complainant's first level supervisor, S1, is a General Engineer at BARC. The Acting Facilities Director, S2, is Complainant's second level supervisor for the incidents in question. S3, was one of Complainant's coworkers and not named as a management official with respect to any of Complainant's prior EEO complaints. With respect to these incidents, S3 served as the Acting Supervisory Project Manager and supervised Complainant during the last quarter of the 2013-2014 performance period. S4, another of Complainant's coworkers, served as his Acting Supervisor during the first quarter of his 2013-2014 performance period.
The record shows that a visiting scientist filed a complaint indicating that Complainant touched her in a manner that she felt was inappropriate and made advances that made her uncomfortable. The Agency's Human Relations office investigated the matter and recommended the issuance of an LOR. Thereafter, S1 issued an LOR to Complainant based on this and presented testimony that Complainant had already been placed on notice because of a previous similar incident. Additionally, the restriction that was placed on Complainant to not enter Building 002 was based on the complaint filed against him and to prevent any further issues, as the accuser worked in that building.
With respect to Complainant's performance rating, several of his supervisors, including S1, S3, who had served as Acting Supervisory Project Manager, and S4, all worked with Complainant and coordinated on his appraisal. All agreed that that there were concerns with Complainant's communication abilities and confrontational style, and that he merited an average rating which corresponded to Superior.
S1 testified that he in fact reminded Complainant via email to submit a leave request because he had taken unscheduled leave. S1 further indicated that Complainant made no issue of the reminder at the time. S1 further testified that Complainant was not authorized to send messages through the BA-ALL message group, use of the group was being limited because of incidents of incorrect information being distributed, and the use of BA-ALL was not an essential function of Complainant's job responsibilities. Concerning the direction that Complainant change his signature line, both S1 and S2 testified that the signature line was not accurate, as someone else had been placed in that position. Moreover, Complainant was required to use his proper title, as he was in fact a Supply Technician.
At the conclusion of the investigations, the Agency provided Complainant with copies of the reports of investigation and notices of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested hearings in both matters. In Agency No. ARS-2014-00105, Complainant withdrew his request at the hearing stage. Accordingly, the AJ dismissed the case from the hearing process and forwarded the matter to the Agency for issuance of a final decision. In Agency No. ARS-2014-00693, the AJ issued an Order to Show Cause based on Complainant's failure appear for a Telephonic Initial Status Conference and failure, thereafter, to advise the Agency or AJ of his unavailability. Upon Complainant's failure to respond, the AJ deemed Complainant's actions as a withdrawal of his hearing request and returned the case to the Agency. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). Both decisions concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant submitted no contentions on appeal. The Agency contends, among a number of things, that Complainant failed to establish a prima facie case of discrimination on any bases. The Agency further submits that, assuming Complainant had established a prima facie case, he failed to show that the Agency's legitimate, non-discriminatory reasons for its actions were pretextual. The Agency also submits that Complainant failed to show sufficient temporal proximity to support a reprisal claim.
ANALYSIS AND FINDINGS
As this is an appeal from decisions issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decisions are 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, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A complainant must initially establish a prima facie case by demonstrating that he or she 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, 441 U.S. at 804 n.14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, a complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
To establish a claim of harassment, a complainant must show that: (1) they belong to a statutorily protected class or engaged in prior protected EEO activity; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class or prior protected EEO activity; (3) the harassment complained of was based on their statutorily protected class or prior protected EEO activity; (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/or was sufficiently material to deter protected EEO activity in the given context; and (5) there is a basis for imputing liability to the employer. See generally Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004, � II.B.3 (Aug. 25, 2016).
In the instant matter, assuming, arguendo, that Complainant established a prima facie case of discrimination of age and reprisal discrimination in Agency No. ARS-2014-00105, and race, color, age and reprisal discrimination in Agency No. ARS-2014-00693, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions in both cases. Moreover, Complainant failed to present evidence to establish that any Agency action was a pretext for discrimination. Additionally, Complainant presented no evidence of actions on the part of the Agency that unreasonably interfered with his work environment, created an offensive work environment or were sufficiently severe or pervasive.
CONCLUSION
Based on a thorough review of the record, the lack of contentions on appeal, and matters not specifically addressed herein, we AFFIRM the Agency's final decision finding no discrimination.
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 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. 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
_9/5/18_________________
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 Complainant listed two other complaints in his Notice of Appeal, Agency No. ARS-2012-00805 and Agency No. ARS-2015-00795. However, both were already the subject of appeals where the EEOC issued decisions finding no discrimination (See EEOC Appeal Nos. 0120142958 (Dec. 2, 2016); and 0120160169 (Jan. 9, 2018)). In the instant appeal, the Agency initially contended that Agency No. ARS-2014-00105 was premature, as the Agency had not issued a final decision when Complainant filed his appeal. Shortly thereafter, the Agency did in fact issue a final decision, hence Agency Nos. ARS-2014-00105 and ARS-2014-00693 are the only matters being considered in the instant decision.
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