0320150011
01-21-2016
Elliot J.,1 Petitioner, v. Jeh Johnson, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Elliot J.,1
Petitioner,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Petition No. 0320150011
MSPB No. SF0432130585I1
DECISION
On November 5, 2014, Petitioner filed a timely petition with the Equal Employment Opportunity Commission asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning his claim of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. For the following reasons, the Commission CONCURS with the MSPB's final order.
ISSUES PRESENTED
The issues presented are whether the Agency discriminated against or retaliated against Petitioner when it demoted him and whether the Agency subjected Petitioner to a hostile work environment.
BACKGROUND
At the time of events giving rise to this complaint, Petitioner worked as an Import Specialist at the Agency's Long Beach Seaport Area facility in Los Angeles, California. Petitioner alleged that the Agency discriminated against and retaliated against him on the bases of race (Asian), national origin (Vietnamese), sex (male) and in reprisal for engaging in prior protected EEO activity (2010 EEO complaint) under Title VII of the Civil Rights Act of 1964 when on June 2, 2013, the Agency demoted him from a GS-11 Import Specialist to a GS-7 Custom and Border Protection Specialist and subjected him to a hostile work environment.2
On November 5, 2010, the Agency placed Petitioner on his first Employee Proficiency Program (EPP) due to unacceptable performance. Petitioner failed the EPP, and the Agency issued a proposed demotion on October 3, 2011. On February 17, 2012, the Director of Field Operations (D1) decided to give Petitioner another chance and rescinded the proposed demotion and on February 24, 2012, D1 transferred Petitioner to a different team with a new supervisor (S1).
On July 12, 2012, S1 placed Petitioner on a second EPP for unacceptable performance. After failing the second EPP, the Agency issued a proposed demotion on January 31, 2013. On May 29, 2013, D1 decided to demote Petitioner from a GS-11 Import Specialist to a GS-7 Customs and Border Protection Technician, with an effective date of June 2, 2013.
Petitioner appealed his demotion to the MSBP on June 28, 2013. A hearing was held on December 16, 2013 and an MSPB Administrative Judge (AJ) issued an initial decision on March 27, 2014, affirming the Agency's decision and finding that the Agency did not discriminate against or retaliate against Petitioner when it demoted him and that the Agency did not subject him to a hostile work environment.
In regards to Petitioner's demotion, the AJ found that Petitioner was demoted for his performance and not for a discriminatory reason based upon his race, national origin or sex. The AJ determined that Petitioner was given clear expectations of his performance; was provided adequate training and; had a reasonable amount of time to improve his performance but was unable to perform successfully in at least one critical element of his position. While the AJ found that Petitioner had demonstrated that he engaged in prior EEO activity; that D1 was aware of Petitioner's prior EEO activity and; that Petitioner was subsequently treated adversely when he was demoted, Petitioner did not show a causal connection between his prior EEO activity and his demotion. Accordingly, the AJ found that the Agency had not retaliated against Petitioner.
Petitioner also alleged that he was subject to a hostile work environment when S1:
1. Met with Petitioner and his union representative to discuss an email she received claiming that Petitioner had thrown a paper towel on the floor in the men's room creating sanitary issues on March 6, 2012;
2. Looked at Petitioner in an angry way after Petitioner told others that S1 had not logged off her computer properly on March 15, 2012;
3. Was friendly to others but "horrible" to him;
4. Got angry when Petitioner had medical appointments;
5. Raised her voice when talking to Petitioner;
6. Laughed at Petitioner when he made mistakes;
7. Asked Petitioner to retrieve mail every day;
8. Spoke to others on the telephone about wanting to "get rid of" Petitioner;
9. Replied "night, night" when Petitioner said "[g]ood night" to her and;
10. Asked Petitioner "[y]ou still stay here?" when she saw him taking a break.
The AJ found that while she believed that Petitioner subjectively believed that he was harassed, a reasonable person would not find S1's questions and comments to be offensive and that Petitioner had not explained how they were offensive. As such, the AJ did not find that Petitioner was subject to a hostile work environment.
Petitioner filed a Petition for Review with the MSPB on May 23, 2014 and the Agency submitted a Response to his petition on May 27, 2014. The MSBP issued a Final Order on October 21, 2014, denying the Petition for Review and affirming its initial decision. After fully considering Petitioner's filing, the MSPB found that there was no basis for granting the Petition for Review.
Petitioner then filed the instant petition on November 5, 2014. He submitted two briefs in support of his petition on November 12, 2014, and November 18, 2014.
ANALYSIS AND FINDINGS
Standard of Review
EEOC Regulations provide that the Commission has jurisdiction over mixed case appeals on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. � 1614.303 et seq. The Commission must determine whether the decision of the MSPB with respect to the allegation of discrimination constitutes a correct interpretation of any applicable law, rule, regulation or policy directive, and is supported by the evidence in the record as a whole. 29 C.F.R. � 1614.305(c).
Petitioner raises additional allegations that are not related to his discrimination claims, which will not be addressed in this decision.
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 Petitioner 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 Petitioner 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 the Petitioner 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, Petitioner 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
Petitioner 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), Petitioner 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).
Assuming, arguendo, that Petitioner established a prima facie case of discrimination based on race, national origin, sex and reprisal; we find that the Agency articulated a legitimate, nondiscriminatory reason for demoting Petitioner based on his unacceptable performance. During Petitioner's second EPP, he received additional training and met weekly with S1 to discuss his work. Despite this additional assistance, Petitioner was unable to pass his EPP and was demoted. Additionally, Petitioner did not demonstrate that any conduct on the part of the Agency was based on discriminatory animus.
The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997). Accordingly, the Commission agrees with the MSPB that Petitioner did not establish that the decision to demote him was based on any of these protected bases.
Harassment
Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of an employee'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, Petitioner 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 Petitioner 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.
In regards to Petitioner's harassment allegation, the record as a whole supports the AJ's conclusion that Petitioner was unable to meet the requirements of a harassment claim. Petitioner did not establish that any of the events he complained of in the instant matter involved unwelcome verbal or physical conduct based on his race, national origin, sex, or his prior EEO activity. Even assuming that S1 acted exactly as Petitioner alleges, the Commission finds that a reasonable person would not find that her conduct created a hostile or abusive workplace.
CONCLUSION
Based upon a thorough review of the record, it is the decision of the Commission to CONCUR with the final decision of the MSPB finding no discrimination when Petitioner was demoted and that the Agency did not subject Petitioner to a hostile work environment. The Commission finds that the MSPB's decision constitutes a correct interpretation of the laws, rules, regulations, and policies governing this matter and is supported by the evidence in the record as a whole.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of 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.
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 Petitioner'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
__1/21/16________________
Date
1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website.
2 Petitioner alleged that he was also discriminated against on the bases of age and disability. The AJ noted that Petitioner withdrew these claims prior to the hearing. Petitioner alleges that the Agency's Assistant Counsel threatened him and scared him into withdrawing those claims. In the Final Order, the AJ found that Petitioner did not show that his argument was based on new and material evidence not previously available despite due diligence, nor was there any evidence in the record to support his allegation.
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