0120142741
03-18-2016
Kenny M.,1 Complainant, v. Daniel M. Tangherlini, Administrator, General Services Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kenny M.,1
Complainant,
v.
Daniel M. Tangherlini,
Administrator,
General Services Administration,
Agency.
Appeal No. 0120142741
Agency No. 10NCRWPMQD16
DECISION
On July 21, 2014, Complainant filed an appeal from the Agency's June 20, 2014, final decision (FAD) 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Lease Administration Manager at an unidentified Agency facility in Washington DC.
On September 28, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), color (Brown), age (60 years old at time of incident), and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. On or about July 14, 2010, Complainant was denied training;
2. Between July and August 2010, Complainant was subjected to retaliatory harassment when Management officials questioned former co-workers about Complainant, went through and cleaned Complainant's desk, and announced to Complainant's customers that he was on stress-leave.
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). Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Specifically, with regard to claim 1, the Agency found that Complainant did in fact receive the training in question. With regard to claim 2, the Agency found that Complainant failed to establish that he incurred harm or that the Agency's actions had a chilling effect.
ANALYSIS AND FINDINGS
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").
Denial of Training
Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-5 3; McDonnell Douglas, 411 U.S. at 804.
This established order of analysis 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that complainant established his prima facie case of discrimination.
Complainant's Supervisor (S1: African American, female, brown, over 40) averred that Complainant "was not denied training." See Report of Investigation (ROI), Exhibit 7, p.4. Instead, S1 averred that Complainant said he wanted to take the training in a classroom setting instead of using an online course, and that she told him she would look into it but that she had moved to a different position before he took the training. See id., p. 5. Complainant's second level Supervisor (S2: African American, male, brown, over 40 years of age) corroborated S1's account and averred that Complainant did receive the required training. See Exhibit 9, pp. 3-4. The Agency having articulated a legitimate nondiscriminatory reason for its action, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency's response is a sham or a pretext to mask discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-5 3; McDonnell Douglas, 411 U.S. at 804.
Following a review of the record we find that Complainant has failed to meet this burden. We note in this regard that Complainant himself averred that he did receive the classroom training "after I filed the EEO complaint." Exhibit 6A, p. 6, see also Complainant's Appeal Brief, pp. 3, 4. On appeal, Complainant argues that "[i]t was only when I explained that the agency was
breaking the law allowing Leased Building Managers to perform duties as contract officer representatives' and not be certified, that the agency allowed me to take the class in person" and that his alleged treatment was because he was "a whistleblower." Id. Assuming that this is true, it does not indicate that discrimination occurred, as retaliation for whistleblowing and/or revealing alleged illegal Agency activity unrelated to discrimination is not covered by our regulations. As for Complainant's earlier claim that he was only provided training after he filed his EEO complaint, we noted that S2 averred that Complainant was initially scheduled for online training but because he insisted on classroom training it took some time for management to set up such training. See Exhibit 9, p. 3. Thus Complainant has not satisfied his burden of establishing, by a preponderance of the evidence, that the Agency's articulated reason for its action was a pretext to mask unlawful discrimination or reprisal, or otherwise establishing that discrimination or reprisal occurred.
Retaliatory Harassment
Complainant maintains that was subjected to retaliatory harassment when Management officials questioned former co-workers about him, went through and cleaned his desk, and announced to his customers that he was on stress-leave. In considering whether any of the above actions, whether individually or collectively, constitute harassment, the Commission notes that in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant's employment. See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. To establish a claim of harassment a complainant 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 McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Furthermore, in assessing whether the complainant 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, Request No. 05970077 (March 13, 1997). However, as noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment." The Court noted that 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. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001).
With regard to Complainant's desk being cleaned, S1 averred that she cleaned Complainant's desk because the Agency:
Had an office clean up competition in which everyone had to clean up by a specific date and management would walk around and view the offices. Awards were given out for the best offices. On day management came in to our office and mentioned in passing that [Complainant and another coworker's] desk [sic] were disorganized. I also organized [the coworker's] desk. I did have a chance to talk to [the] legal [Department] about if it was okay to do this. . . . . [The Legal Department] stated that employees desk are federal property and any personal documents should be secured and locked, or taken home. Being that the desk in that office is federal property it can be done, and as management I have the right to do that.
Exhibit 7, p. 7.
With regard to S1 and a former coworker (FC: African American, male, brown, over 40) announcing to others that Complainant was out on stress leave, both denied doing so. See id., p. 10 and Exhibit 12, p. 4.
In response, Complainant on appeal states that S1 "did not need to clean my desk" and that "there is no one's desk as messy as hers." See Appeal Brief, p. 6. Complainant further points out that the FAD failed to address whether FC had told others about Complainant's stress leave. While it is true the FAD only addresses S1's response, a review of the record shows that FC also denied telling anyone about Complainant's stress leave. Complainant's responses do not show, by a preponderance of the evidence, that either S1 or FC engaged in retaliation.
The only remaining incident concerns management officials questioning other employees about Complainant. We find that such an incident is simply not severe enough to constitute retaliatory harassment. See Faragher, 524 U.S. at 788.
On appeal, Complainant maintains that the Agency failed to address all his claims, including a claim of denial of reasonable accommodation and a claim that the Agency changed his position from Building Manager to Leased Building Manager. Complainant further contends that:
It should be noted that that on the September 28, 2010 formal complaint, I wrote under requested remedy "reassignment to a position conducive to my disabilities". Again, I am dyslexic and ADHD, just because I didn't check a specific box does not mean that I was not discriminated due to my disabilities. The formal complaint also identifies my claim that the agency changed my position from Building Manager to Leased Building Manager position. The October 8, 2010 acceptance/dismissal letter issued by the agency makes no mention of disability discrimination or the agency's failure to reasonably accommodate.
Complainant's Appeal Brief, p. 9.
We note, however, that with regard to the position change, the October 2010 acceptance/dismissal letter specifically dismissed that claim for untimely EEO Counselor contact, finding that the incident occurred on March 20, 2010 but Complainant did not contact a Counselor until August 3, 2010, which is beyond the 45 day regulatory limit. See Exhibit 3, p. 2. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact.
With regard to a claim of denial of reasonable accommodation, Complainant argues:
At the time I was pro se, as I am currently. When proceeding pro se, pleadings should be construed liberally and afford the plaintiff any benefit of the doubt. In determining whether a plaintiff complies with procedural portions of a discrimination cause of action, courts are guided by the principle that the EEOA is a remedial statute to be liberally construed in favor of victims of discrimination. I had no knowledge as to how to format my complaint or how to include a reasonable accommodation claim in my formal complaint. The fact
that I listed "reassignment to a position conducive to my disabilities" as requested relief shows that I believed that I was including a claim for the agency's failure to provide reasonable accommodations.
Complainant's Appeal Brief, p. 9
Following a review of the record we are unpersuaded by Complainant's arguments. We note that despite acting pro se, and despite claiming he had no knowledge about how to include a reasonable accommodation claim in his formal complaint, Complainant was able to articulate his other claims sufficiently to put the Agency on notice regarding the nature of his complaint. While Complainant asked for "reassignment to a position conducive to my disabilities" in the remedies section, he did not identify when he was allegedly denied a reasonable accommodation, nor by whom, nor did he actually say he was denied a reasonable accommodation. We note that pursuant to 29 C.F.R. � 1614.106(c) a complaint must contain a statement that "describe[s] generally the action(s) or practice(s) that form the basis of the complaint," which Complainant was able to do with regard to his other claims, but not with regard to any claim alleging denial of reasonable accommodation. Furthermore, Complainant was placed on notice by the October 2010 letter that the Agency was unaware that he was claiming denial of reasonable accommodation. The letter further notified Complainant that if he felt that the issues were incorrectly identified, he should alert the Agency, yet Complainant has provided no evidence that he did so within the required time limit.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has failed to establish, by a preponderance of the evidence, that discrimination occurred and we therefore AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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, 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 (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
March 18, 2016
__________________
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
0120142741
2
0120142741