0120162661
02-23-2018
Leandro P.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Leandro P.,1
Complainant,
v.
Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120162661
Hearing No. 430201600131X
Agency No. 154008501620
DECISION
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 July 14, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Materials Handler, WG690715 at the Agency's NAVFAC MIDLANT facility in Norfolk, Virginia.
On May 12, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and age (60) when, on April 2, 2015, management directed Complainant to provide medical prognosis / diagnosis paperwork while he was still on medical leave status.
The pertinent evidence shows the following facts. On March 30, 2015, Complainant submitted a leave request to use 40 hours of accrued sick leave starting on March 23, 2015 through April 3, 2015. On the annotation, it was noted that Complainant was scheduled for one day of surgery, two days for medical workups, and "12 days Convalescent Leave." There was another request for eight hours of accrued annual leave for March 23, 2015. His first line supervisor (Hispanic, age unknown) approved the leave request.
On April 2, 2015, his third level supervisor received the leave requests and timecards to enter into the Standard Labor Data Collection and Distribution Application for the pay period ending April 4, 2015. Due to discrepancies between the time card and the two leave requests, the third level supervisor (race and age unknown) contacted Complainant's second line supervisor (race and age unknown) to clarify the differences. Complainant maintains that he only submitted one leave request that covered the extended leave.
On April 2, 2015, the second line supervisor contacted Complainant, requesting a "doctor's letter or note to support his Sick Leave request." Complainant was very upset by the supervisor's call and request for medical documentation. He called the second line supervisor back and expressed his frustration, using profane language. He informed the second line supervisor that he would provide the note when he returned. He did provide the requested medical certification on April 20, 2015.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation. Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). The AJ denied the hearing request on the grounds that his request for a hearing was untimely. Complainant did not dispute that his request for a hearing was untimely. The AJ remanded the complaint to the Agency, which issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
Agency Decision
The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency reasoned that he was not subjected to a direct or personal deprivation sufficient to render him aggrieved when he was asked for medical documentation. The Agency also found that he failed to establish a nexus between the claimed hostile work environment and his protected status. The Agency stated that "other than the one incident of being contacted for a doctor's note while on leave, he provided no additional evidence that would constitute harassment or a hostile work environment." This appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant stated that he received a phone call at his home from his first and second line supervisors about a doctor's note. He stated that his integrity was in question at that point. He also stated that, fifteen years earlier, he was placed into his position which had no promotional opportunity. He also contended that "things have happened to him since the complaint started." Specifically, he mentioned that his duty station was changed, which forced him to drive his personal vehicle from his primary duty station to his temporary duty station for three years without being reimbursed and that he was falsely put out on AWOL charges.
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").
Section 717 of Title VII states that "[a]ll personnel actions affecting [federal] employees or applicants for employment . . . shall be made free from any discrimination based on . .. race" 42 U.S.C. S 2000e-16(a). Similarly, Section 633(a) of the ADEA states that all personnel actions shall be made free from age discrimination. 29 U.S.C. � 633(a).
Here, Complainant alleges that the Agency subjected him to discrimination based on his race and age when his supervisors called him at his home and requested that he provide a doctor's note for his extended leave. He did not allege that he was treated differently than any similarly situated individual, because of his protected groups.
In this case, although his supervisors called him while he was on leave, he acknowledged no personnel action was taken against him. He has not shown that he was aggrieved.
To establish a claim of hostile environment harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (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 (5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 Fd.2 897 (11th Cir. 1982.)
In addition, to prove a harassment claim, a complainant must establish that he or she was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. The complainant must also prove that the conduct was taken because of a protected basis - in this case, because of her race, color, sex, or reprisal. Only if a complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. The Agency concluded that the evidence showed that the actions were taken for reasons associated with his leave requests, not his protected bases.
Upon careful review of the evidence of record, as well as the parties' arguments on appeal, we conclude that substantial evidence of record supports the Agency's determination that Complainant had not proven by a preponderance of the evidence that the Agency unlawfully discriminated against him as alleged or that the conduct was taken because of a protected basis.
We note that Complainant raises new claims on appeal. To the extent that Complainant wishes to challenge alleged incidents of discrimination that occurred after the filing of the complaint, he should contact an EEO Counselor to initiate the EEO process on those claims.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Decision.
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 tends 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
February 23, 2018
__________________
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.
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