Jose Ascencio, Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionNov 27, 2009
0120092767 (E.E.O.C. Nov. 27, 2009)

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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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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