0120092767
11-27-2009
Jose Ascencio, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Jose Ascencio,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120092767
Agency No. RD-2007-00198
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's May 22, 2009 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.
During the period at issue, complainant was employed as a Rural
Development Specialist, GS-9, at the agency's Rural Development in
Edinburg, Texas.
On January 29, 2007, complainant alleged that he was subjected to
harassment and a hostile work environment in reprisal for prior protected
activity when:
1. management scrutinized his leave usage and denied his request for
annual leave for November 24, 2006;
2. his performance was routinely questioned;
3. he received a lowered rating in certain elements for the Fiscal Year
2006 rating period and when he questioned his supervisor about the rating
she became angry and failed to provide an adequate response;
4. on November 15, 2006, he was issued a Letter of Caution for not
following a directive, and a separate letter directing him to take an
online time management course; and
5. he was approached on two (2) occasions about obtaining his signature
on the November 16, 2006 letters.
At the conclusion of the investigation, 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). In accordance with
complainant's request, the agency issued a final decision on May 22,
2009, pursuant to 29 C.F.R. � 1614.110(b).
In its May 22, 2009 final decision, the agency found no discrimination.
Without addressing the prima facie analysis, the agency found that
management articulated legitimate, nondiscriminatory reasons for
its actions which complainant failed to show were a pretext for
discrimination.
Regarding complainant's harassment claim, the agency found that the
evidence in the record did not establish that complainant was subjected
to harassment based on prior protected activity. Specifically, the
agency found that the alleged harassment was insufficiently severe or
pervasive so as to create a hostile work environment.
Regarding claim 1, complainant's first-line supervisor (S1) denied
scrutinizing complainant's leave usage. S1 further stated that she
denied complainant's request for annual leave for November 24, 2006,
because the employees did not come to an agreement on who will come to
work the day after the Thanksgiving holiday. Specifically, S1 stated
"typically on any day after a holiday, I tell the employees to meet,
discuss, and come to an agreement who will come to work the day after
the holiday. In this case, it was Thanksgiving. All employees have
been told that if they can't agree, on who comes in the day after, then
I won't authorize any leave for any employee." S1 stated that while
she was not in attendance, she was notified by several employees that
complainant "walked into the conference room and announced that he would
not negotiate the day that he was going to be off. So, the employees
left the meeting without further discussion." Furthermore, S1 stated
that it was true complainant "hasn't had a day after Thanksgiving in a
while because the employees can't agree and no one is willing to give in.
But he isn't the only employee who hasn't had the day after Thanksgiving
in awhile either."
Regarding claim 2, S1 stated that complainant's performance "is not
routinely questioned by me . . .." S1 stated "I do on occasion talk to
the complainant about his performance which is at the beginning of the
appraisal period, during the mid-year reviews, and the final reviews.
I have also talked to him about following his calendar because he strays
from what he is supposed to be doing and then he doesn't complete the work
that he planned and scheduled. Although he is slow doing the work, he
does eventually complete the work and it is not usually completed within
the time frame established and needed. This to has been discussed with
him on several occasions and his response is always 'I am doing the best
I can.'"
The Administrative Program Director (D1) stated that complainant
telephoned her on several occasions complaining that he was being
subjected to harassment by S1. D1 further stated that when complainant
"told me how he thought he was being harassed and that [S1] was the
harasser. I explained to him what harassment was and the supervisor's
role in communicating to him what he needs to do to get the job done;
deficiencies, work load and assignments. To some degree he agreed with
me, but he felt he was being harassed because [S1] wasn't communicating to
the other employees like she was with him. To the best of my knowledge,
she wasn't having problems with the other employees because they were
doing their work."
Further, D1 stated that S1 informed her that "the average employee, once
all the documents are received could process the application in about
30 minutes versus the complainant who took about a couple of hours to
complete one loan application . . . I advised [S1] to counsel him and
have the procedures to back her up insofar as what is required; inquire
if he needed one-on-one training; put discussions in writing that way it
goes on record what the problems are that she's having with him so that he
can't refute it later - basically a recap of their discussion and to help
- him better understand what the deficiencies are in his performance."
Moreover, D1 stated "on a personal note, there is some type of conflict
between [S1] and the complainant and I personally believe it is because
she is a woman. [S1] is just trying to work with him to get him to
do his job - he has not been targeted or singled out. If anything,
the complainant has created a hostile work environment for others."
Regarding claim 3, S1 stated that when she gave complainant a fully
successful rating for the fiscal year 2006, he "refused the rating
stating he deserved no less than a 'Superior Rating.' I told him [that
for complainant to receive] a superior rating, I would need to justify
it and I would not be able to."
Regarding claim 4, S1 stated that on November 15, 2006, she issued
complainant a Letter of Caution because he "failed to follow and complete
a directive that was given to him by me his immediate supervisor."
S1 stated that on October 24, 2006, she asked complainant to make
telephone contacts on 17 prospective applicants. S1 stated that
on November 6, 2006, approximately two weeks later after she asked
complainant to make the contacts, she issued him a memorandum and
"gave him a deadline and again he ignored my directive. On or about
the November the 15th [2006], I contacted the HR Manager in Temple and
requested his assistance and concurrence to issue the Letter of Caution
for his refusal to follow my instructions and/or directives."
Regarding claim 5, S1 stated that she was instructed by the HR Manager to
meet with complainant and "to read and discuss the letter of caution with
him and I did that on November 15, 2006. I asked the complainant to sign
the acknowledgment stating he had received the letter and he refused."
S1 stated that after complainant refused to acknowledge the letter,
she contacted the HR Manager and informed him that complainant refused
to sign the letter and "he advised me to contact [a named Area Director]
to come by the office and discuss the letter with the complainant again."
S1 stated that she then contacted the Area Director and "he came to
the office on November 16, 2006 to again discuss the letter of caution
with the complainant and again he refused to acknowledge the letter."
S1 stated that she contacted the HR Manager again and informed him that
complainant had refused to sign the letter and "he asked that both [Area
Director] and I sign and attach a statement to the Letter of Caution
that we had met with the complainant and he had refused to sign the
acknowledgment."
On appeal, complainant argues that the agency's final decision finding
no discrimination "was not a fair decision. It appears more weight and
favor went to management's testimony and explanation. Also the majority
of these people were involved in my last EEOC hearing so I believe there
is some resentment." Complainant further argues that he is subjected
to ongoing harassment "after this complaint as police reports have been
filed against me and management did not intervene."
A claim of disparate treatment is examined under the three-party analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima facie
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. See
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Once the agency has met its burden, the complainant bears the ultimate
responsibility to persuade the fact finder by a preponderance of the
evidence that the agency acted on the basis of a prohibited reason.
See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The agency articulated legitimate, nondiscriminatory reasons for its
actions. Complainant has not demonstrated that these reasons were a
pretext for discrimination.
We have considered complainant's arguments on appeal. Nevertheless,
the record supports the agency's determination that it did not act in
a discriminatory manner relating to any of the claims discussed above.
Therefore, after a review of the record in its entirety, including
consideration of all statements on appeal, it is the decision of the
Equal Employment Opportunity Commission to AFFIRM the agency's final
decision because the preponderance of the evidence of record does not
establish that discrimination occurred.
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 (S0408)
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 (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
November 27, 2009
__________________
Date
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0120092767
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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