0120160985
04-19-2016
Matt B.,1 Complainant, v. Sally Jewell, Secretary, Department of the Interior (Geological Survey), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Matt B.,1
Complainant,
v.
Sally Jewell,
Secretary,
Department of the Interior
(Geological Survey),
Agency.
Appeal No. 0120160985
Agency No. DOI-USGS-15-0663
DECISION
On December 25, 2015, Complainant filed an appeal from the Agency's December 21, 2015, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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 was former employee with the Agency. Complainant had been employed as an Administrative Operations Assistant, Northern Prairie Wildlife Research Center in Jamestown, North Dakota.
On April 20, 2015, Complainant contacted the EEO Counselor alleging discrimination. When the matter could not be resolved informally, Complainant was issued a notice of right to file his formal complaint. On May 28, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), national origin (U.S.A.), sex (male), religion (Roman Catholic), color (White), disability, age (33)2, and reprisal when:
1. On January 26, 2015, Complainant was terminated during his probationary period from his position as an "Administrative Operations Assistant GS-0303-03;
2. From August 2014 - January 26, 2015, Complainant was subjected to a hostile work environment. He asserted that he was mistreated by his co-workers and supervisor. He indicated that he was subjected to blatant rudeness, disrespect, incorrect pronunciation of his name, and vulgar and offensive language.
3. On and around April 13, 2015, his former supervisors (S1 and S2) gave unfavorable references to potential employers when they call to check his references;
The Agency dismissed claims (1) and (2) pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO Counselor contact. The Agency noted that claims (1) and (2) occurred on January 26, 2015, when Complainant was terminated from his position. Complainant did not contact the EEO Counselor until April 20, 2015, well beyond the 45 day time limit. The Agency noted that Complainant was informed of the EEO time frames during No Fear training he attended. The Agency provided a copy of the information presented at the training which included the timeframes for contacting the EEO Counselor. The Agency also produced Complainant's certificate of completion dated September 2, 2014. Therefore, the Agency dismissed claims (1) and (2) and accepted claim (3) for investigation.
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). 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 in claim (3).
This appeal followed.
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").
Dismissal of Claims (1) and (2)
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105, �1614.106 and �1614.204(c), unless the Agency extends the time limits in accordance with �1614.604(c).
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. � 1614.105(a)(2) allows the agency or the Commission to extend the time limit if the Complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence Complainant was prevented by circumstances beyond his control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission.
Upon review of the record, we find that the Agency's dismissal was appropriate. The Agency provided evidence that Complainant was made aware of the 45 day time limit based on the training he received on September 2, 2014. Complainant was terminated effective January 26, 2015. At that time, the harassment Complainant experienced also ended.3 Complainant did not contact the EEO Counselor until April 20, 2015, beyond the 45 day time limit. Therefore, we find that the Agency's dismissal of claims (1) and (2) pursuant to 29 C.F.R. � 1614.107(a)(2) was appropriate.
Claim (3)
In claim (3), Complainant alleged that he was subjected to discrimination on the bases of race, sex, color, religion, national origin, disability, and in retaliation when S1 and S2 provided negative references to potential employers. As such, Complainant asserted that he was subjected to disparate treatment. A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first 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. 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. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary's Honor Ctr. 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
For the purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R. � 1630.2(g)(1). Upon review of the record, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its action. The record indicated S2 terminated Complainant due to the deficiencies with his performance. The record shows that Complainant's termination occurred under unfavorable circumstances, which were documented in the record. The record indicated that S1 received a fax and a phone call from two potential employers. As a result, S1 responded to the requests and informed the potential employers that Complainant was terminated due to performance issues. We find that the Agency has provided legitimate, nondiscriminatory reasons for its action.
We turn to Complainant to establish that the Agency's action constituted unlawful discrimination. Upon review, we find that Complainant has not demonstrated the Agency's explanation to be false or pretext for discriminatory animus. We also note that Complainant provided potential employers with S1 and S2 as references knowing the circumstances for his termination. Therefore, we conclude that Complainant has not established that the references raised in claim (3) constituted unlawful discrimination based on his race, national origin, sex, religion, color, disability, and prior protected activity.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision dismissing claims (1) and (2) and finding no discrimination was to claim (3).
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
April 19, 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 We note that the ADEA's protections are for individuals over the age of 40. Based on his stated age as 33, Complainant has failed to state a claim under the ADEA.
3 We note that there is no indication that the alleged harassment included the negative references alleged in claim (3).
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