Marlon H.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Food and Nutrition Service), Agency.

Equal Employment Opportunity CommissionSep 20, 2018
0120170631 (E.E.O.C. Sep. 20, 2018)

0120170631

09-20-2018

Marlon H.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Food and Nutrition Service), Agency.


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Marlon H.,1

Complainant,

v.

Sonny Perdue,

Secretary,

Department of Agriculture

(Food and Nutrition Service),

Agency.

Appeal No. 0120170631

Agency No. FNCSCF201600133

DECISION

On November 26, 2016, 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 November 9, 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.

ISSUES PRESENTED

Whether Complainant established that he was discriminated against based on race (African-American), sex (male), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when he was issued an unacceptable performance rating, placed on AWOL, suspended for three (3) days, not approved for training, and harassed.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a EEO Specialist, GS-13 at the Agency's FNCS, Civil Rights Division facility in Alexandria, Virginia. On March 4, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:

1. On October 30, 2015, he was issued a performance rating that did not take into account his heavy workload;

2. On October 6, 2015, he learned that he was placed in an Absent Without Official Leave (AWOL) status on September 18, 2015;

3. On an unspecified date, he was suspended for 3 days as a result of his AWOL charge;

4. On an unspecified date, he was not approved for training; and

5. On various dates, he was subjected to additional harassing behavior, including:

a. on October 21, 2015, he received an email implying that he had exceeded the amount authorized for official travel;

b. since October 20, 2015, he has been required to remain logged into the Lync instant messaging system due to his full-time telework status;

c. on October 6, 2015, he was required to send his supervisor an email to prove that he was receiving technical support for his malfunctioning laptop;

d. on unspecified dates, his supervisor refused to answer his work-related questions; and

e. on an unspecified date, he was told to drop the subject complaint if he wanted to continue in his role as an investigator.

In 2014, Complainant was supervised by RMO1. RMO1 became Complainant's Second Level Supervisor in April 2016. RMO2 was Complainant's Second Level Supervisor until March 2016.

Performance Rating

On October 30, 2015, Complainant was issued a performance rating that he asserted did not consider his heavy workload. Complainant stated that he had received a performance rating of "Outstanding" in Fiscal Year (FY) 2014. In 2015, he was rated as "Satisfactory." He stated that RMO1 treated him "properly" when he first started supervising him, but adopted a negative attitude towards him, the other Black male in the office, and asserted that that RMO1 and ROM2 have been demeaning towards him.

The Agency denies that Complainant's race, sex or prior EEO activity were factors in his rating. The Agency contends that Complainant did not have a heavier caseload than his colleagues. Complainant was assigned fifteen (15) cases to process, and he closed five (5) cases. In contrast, the other GS-13 was assigned fourteen (14) cases and closed nine (9). RMO1 also stated that Complainant's assigned cases included some that were held in abeyance while the Office of Inspector General completed the criminal investigations related to those cases. During that time, Complainant did not have to work on those cases.

In FY 2015, Complainant was assigned sixteen (16) cases to process and thirteen (13) cases that were carried over from FY 2014, which were completed, but needed review and approval. Complainant, who was the senior investigator on the staff, completed nineteen (19) cases, which consisted of twelve (12) newly assigned cases and seven (7) older cases which only needed review and approval.

RMO1 also took into consideration the implementation of Standard Operating Procedures (SOPs). He stated that Complainant received a "Fully Satisfactory" rating because he did not produce quality work and failed to follow the SOPs. RMO1 stated that he had to walk Complainant "step-by-step" through how to conduct an investigation.

RMO2 agreed with the rating. He stated that Complainant's workload was equal to others in the unit and was a factor in his rating. While Complainant was not satisfied with his rating, RMO2 stated that he did not consider it to be "an adverse rating."

AWOL

The Agency implemented the "Lync" electronic system to monitor when employees were on-line. RMO1 stated that Complainant was not detected to be on line for more than five (5) hours on September 18, 2015, and he was charged with 5 hours of AWOL. Complainant stated that RMO2 is racist towards African-American males. He avers that employees of other races are off-line, but not placed on AWOL. He also contends that the directive to be on Lync was implemented after he filed his EEO complaint.

RMO1 stated that Complainant failed to respond to multiple email communications within an allotted time. When Complainant finally responded, he claimed that he had been working on reading EEO Investigator guidelines. RMO1 stated that since Complainant is not an EEO Investigator, the activity was not appropriate. Further, the Agency's policy was that an employee has one hour to respond to management when receiving notifications via instant messenger. RMO2 concurred.

Suspension for AWOL

Complainant avers that discrimination was the reason for his suspension. Both RMO1 and RMO2 concurred on the suspension because Complainant was not engaged in his assigned work.

Complainant Not Approved for Training

Complainant avers that multiple requests to RMO1 and RMO2 for training were not approved. Complainant stated that he was told that funding was not available. Agency records show that Complainant received training on Adobe, Concur, AgLearn courses and investigations. Complainant also received training on an instructional guide for all staff. RMO1 stated that he personally provided training to Complainant. The Agency stated that Complainant's request for ADR training was denied due to budget constraints, and that this particular training sought was not "imperative" to Complainant's job functions.

Harassment

On October 21, 2015, RMO1 emailed Complainant accusing him of falsifying his travel voucher. Complainant stated he was told by RMO1 that it was denied for not submitting a receipt. RMO1 stated that the Agency travel office informed him that a receipt was required, but later advised him that a receipt was not necessary since the fare was under $75.00. Complainant stated that his race and sex were the motivating factors for RMO1's actions.

Since October 20, 2015, Complainant claims that the requirement to remain logged on the Lync Instant Message system was due to Complainant's full-time telework status and constitutes harassment. The Agency states that all virtual "employees are required to be on Lync since August 18, 2015." The Agency denied that the requirement was related to Complainant's EEO activity.

On October 6, 2015, Complainant was required by RMO1 to send an email to prove that he was receiving technical support for his malfunctioning laptop. Complainant avers that this was harassment. RMO1 stated that all staff was requested to advise him of malfunctions. RMO1 stated that he specifically required Complainant to submit an email because Complainant had a pattern of not communicating with him, and had previously been placed on AWOL.

On unspecified dates Complainant stated that RMO1 "refused to answer his work-related questions." RMO1 denied this allegation, and stated that he has emails "attesting to the fact that he answers Complainant's questions."

In October 2015, Complainant stated that after he filed his EEO complaint, he was offered virtual work status by an ADR Mediator if he dropped his EEO complaint. Complainant declined the offer. However, a week later Complainant accepted the offer from RMO1. RMO1, according to Complainant, stated that Complainant should be happy that RMO2 allowed him to continue being an investigator. RMO2 stated that he had no knowledge of Complainant being told to drop his complaint if he wanted to continue to be an investigator. RMO1 stated that Complainant's virtual work status was approved outside of the ADR process with no conditions.

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. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), 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.

CONTENTIONS ON APPEAL

The parties did not file statements on appeal.

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").

Disparate Treatment

To prevail in a disparate-treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). Complainant can do this by showing that the proffered explanations are unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer's articulated reasons are not credible permits, but does not compel, a finding of discrimination. Hicks at 511.

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on race, sex, and reprisal, we find that the Agency presented legitimate, nondiscriminatory reasons for its actions with regard to Complainant's performance rating, AWOL, suspension and denial of his training request. Complainant did not provide evidence that the Agency's reasons were a pretext for discrimination.

Harassment Claims 5(a), 5(b), 5(c) and 5(d)

In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create a hostile or abusive working environment." The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive" and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance."

To establish a claim of harassment, Complainant must show that: (1) he is a member of 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 protected class; (4) the harassment 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 to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. � 1604.11. The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994) (Enforcement Guidance on Harris). The evaluation "requires careful consideration of the social context in which particular behavior occurs and is experienced by its target." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998).

In this case, the record does not support a finding that the Agency subjected Complainant to discriminatory harassment. The evidence does not establish that Complainant was treated less favorably that similarly situated employees. The evidence presented by Complainant did not establish that the incidents occurred because of his race, sex, or protected EEO activity. The incidents presented in this case by Complainant appear to be normal workplace instructions, activities and tensions found in a work environment. Further, Complainant failed to demonstrate that the purported harassment had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or an offensive work environment.

With regard to incident 5(e) of Complainant's harassment claim, we note that, to the extent Complainant maintains that the ADR Mediator's offer of Virtual Work in exchange for settling the complaint was discriminatory, the Commission has held that settlement negotiations are to be treated as confidential and privileged in order to facilitate a candid interchange in order to settle disputes informally. Therefore, Complainant cannot bring a new complaint regarding statements made during mediation. We also find no persuasive evidence that he was told that he would not continue as an investigator if he did not drop his complaint. Accordingly, we find that Complainant has not demonstrated that the Agency subjected him to discrimination or a hostile work environment based on race, sex, or protected EEO activity.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the 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 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. 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

___9/20/18_______________

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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