0120112942
11-07-2012
Pradeep K. Goel, Complainant, v. Dr. Rajiv Shah, Administrator, Agency for International Development, Agency.
Pradeep K. Goel,
Complainant,
v.
Dr. Rajiv Shah,
Administrator,
Agency for International Development,
Agency.
Appeal No. 0120112942
Hearing No. 570-2010-00499X
Agency No. 0901
DECISION
On May 16, 2011, Complainant filed an appeal from the Agency's April 11, 2011, final order 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 order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant, a physician, served as a fellow in the capacity of Senior Immunization Adviser for the Agency in Nigeria, Africa from February 2007 to July 2008.
Complainant filed an EEO complaint dated October 6, 2008, alleging that the Agency discriminated against him on the bases of race (Indian), religion (Hindu), and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. In Nigeria starting in March 2007, the Deputy Team Leader repeatedly yelled "holy cow," even after being told by Complainant that this was pejorative to him as a Hindu;
2. In Nigeria starting in February 2008, Complainant's second-level supervisor (S2), who lived in the same housing compound as Complainant's family, harassed and acted in a threatening manner toward his family;
3. Complainant learned in March 2008, that the Agency submitted negative input about his performance in Nigeria for his annual review;
4. In Nigeria in April 2008, Complainant was moved into an undesirable cubicle;
5. In Nigeria on June 8, 2008, the Agency denied Complainant's request for his annual professional development benefit, a form of training;
6. On June 8, 2008, the Agency informed Complainant that his service in Nigeria would be cut off at the end of September 2008; and
7. Complainant was constructively discharged in Nigeria on July 8, 2008.1
At the conclusion of the investigation on the above listed issues, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's motion for a decision without a hearing and issued a decision without a hearing on March 16, 2011. At the same time he issued his decision, the AJ also denied Complainant's December 5, 2010 motion to compel discovery.
The Agency subsequently issued a final order on April 11, 2011. The Agency's final order fully implemented the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
On appeal, Complainant states that the Agency failed to respond to his discovery requests. He states that although he filed his discovery request on August 12, 2010, and subsequently filed a motion to compel discovery, the AJ did not respond to his motion to compel discovery until he granted the Agency's motion for summary judgment on March 16, 2011. Complainant states that had he known in advance that the motion to compel would be denied, he would have prepared a rebuttal to the Agency's motion for summary judgment. Additionally, Complainant argues the AJ failed to give him adequate notice of the proposal to issue a decision without a hearing.
In response to Complainant's appeal, the Agency argues that Complainant failed to make a timely initial discovery request per the AJ's instructions in his Acknowledgement and Order dated April 15, 2010, and thus, waived his right to discovery. The Agency reiterates its position that there were no genuine disputes of material facts; that all parties agree that the multiple altercations with various co-workers that Complainant complains of did occur; and all parties agree that Complainant had acrimonious relations with many co-workers. The Agency states that the record reflects non-discriminatory bases for Agency actions, and argues that Complainant's accusations alone cannot refute them. Thus, the Agency concludes that it has articulated legitimate non-discriminatory reasons for its actions, and Complainant failed to produce any evidence of pretext.
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 EEOC Management Directive for 29 C.F.R. Part 1614, Chap. 9, � VI.A. (Nov. 9, 1999) (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").
At the outset, we find Complainant failed to show the AJ abused his discretion by denying his motion to compel discovery. Complainant has not shown how his discovery request, even if timely, could have led to questions of material fact being in dispute. Moreover, despite Complainant's arguments to the contrary, we find Complainant received adequate notice of the Agency's motion for summary judgment and was afforded an opportunity to respond to the Agency's motion. Specifically, we note that on appeal, Complainant acknowledges receiving the Agency's November 15, 2010 motion for summary judgment and states that had he known his motion to compel would be denied, he would have prepared a rebuttal to the Agency's motion for summary judgment. Thus, while the AJ did not rule on Complainant's motion to compel discovery until March 16, 2011, this delay did not deprive Complainant of the opportunity to respond to the Agency's motion for summary judgment.
Upon review of the record, we find the AJ's issuance of a decision without a hearing was appropriate as the record is adequately developed and there are no genuine issues of material fact in dispute and no credibility determinations at issue. In the present case, we find that the Agency articulated legitimate, non-discriminatory reasons for its actions. With regard to issue (1), in which Complainant alleged that the Deputy Team Leader repeatedly yelled "holy cow," we find this phrase is commonly used in American English as an exclamation of astonishment. The evidence shows the Deputy Team Leader used this phrase to express surprise and not as an insult to Complainant based on his protected status. Furthermore, Complainant has not indicated the frequency of the use of this phrase or the range of time this phrase was allegedly uttered.
With regard to issue (2), Complainant claimed that his second-level supervisor harassed him and his family. We note Complainant and his supervisor lived adjacent to each other in the same housing compound provided by the Agency. The incidents described concern comments regarding their shared access to limited water resources, dog droppings by S2's dog on Complainant's lawn, and S2's complaints about Complainant's early morning conch shell blowing and ringing of a bell as part of Complainant's religious practices. The record reveals that the alleged incidents concern acrimony between neighbors regarding their perceptions of disruption of their respective right to use and enjoy their personal space; however, we find no evidence that this antagonism was motivated by discrimination.
With regard to issue (3), Complainant alleged that his first-level supervisor (S1) discriminated against him because she included negative statements in his annual performance evaluation. The record reveals that the Agency perceived Complainant as having difficulty sharing information on the activities he managed. Both S1 and the Deputy Team Leader stated that Complainant was reluctant to share information with his team members and they stated that they had to directly pull the necessary information from him. The record also reveals that there were three reported instances of female co-workers claiming that Complainant was hostile and belittling towards them. The Agency has provided legitimate, non-discriminatory reasons for including negative statements in Complainant's performance evaluation which Complainant failed to show were a pretext for discrimination.
With regard to issue (4), Complainant alleged that in April 2008, he was moved into an undesirable cubicle. Complainant contends he asked for a private office and instead was given a small cubicle. The Agency noted with the exception of the Team Leader, Deputy Team Leader, some Foreign Service Officers, and a personal services contractor, the other team members had cubicles. The Team Leader in her affidavit stated that Complainant's cubicle was not any better or worse than any other team member. Complainant failed to show that the Agency's actions in assigning him office space were based on discriminatory animus.
With regard to issue (5), Complainant alleged that the Agency denied his request for annual professional development, a form of training. The record reveals that the Agency agreed that between five to seven percent of Complainant's time would be spent on professional development activities as stated in annual professional development plans. The letter of agreement in the record stated that the annual plans would be developed by Complainant and the onsite manager at the beginning of each year. The letter of agreement noted that as part of professional development activities during the first year, the Agency would allow Complainant to attend a week-long leadership conference to be held in the Washington, D.C. area. S1 noted that Complainant was permitted to attend the week-long leadership conference in Washington, D.C. to be held in March 2008; however, Complainant declined to attend this conference. S1 noted that other alternative conferences were suggested to Complainant; however, he declined those alternatives as well. The record reveals that on May 28, 2008, Complainant submitted a request to attend a training conference in India. The Agency noted that at the time of Complainant's request, it had already been established that Complainant would not be with the Agency much longer, and thus, the Agency stated it would not receive any benefit from permitting Complainant to attend this training. Thus, the Agency articulated legitimate, non-discriminatory reasons for its actions which Complainant failed to show were a pretext for discrimination.
With regard to issue (6), Complainant claimed that on June 8, 2008, the Agency informed him that his employment would end at the end of September 2008. The Agency noted that given the restructuring of the immunization program, it would be phasing out Complainant's position by the end of the fiscal year. In her affidavit, S1 stated that the Agency was changing its strategy from one of direct implementation to providing funding to the World Health Organization program which would in turn work with the government of Nigeria to strengthen its national immunization program. The Agency noted as a result, that its focus would be more on policy and advocacy at the government and donor level and it would no longer need a full-time immunization specialist. Complainant failed to show that the Agency's legitimate, non-discriminatory reasons for phasing out Complainant's position were based on discriminatory animus.
With regard to issue (7), Complainant claimed that on July 8, 2008, he resigned which he alleged was a constructive discharge. The central question in a constructive discharge case is whether the employer, through its unlawful discriminatory behavior, made the employee's working conditions so difficult that any reasonable person in the employee's position would feel compelled to resign. The Commission has established three elements which a complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in the complainant's position would have found the working conditions intolerable; (2) conduct that constituted discrimination against the complainant created the intolerable working conditions; and (3) the complainant's involuntary resignation resulted from the intolerable working conditions. See Walch v. Dep't of Justice, EEOC Request No. 05940688 (April 13, 1995). In the present case, Complainant failed to show that the working conditions were intolerable. Additionally, as stated above, Complainant has not shown that the Agency's actions were motivated by discriminatory animus. Thus, the Commission finds that Complainant cannot establish the necessary elements to prove constructive discharge.
CONCLUSION
Accordingly, the Agency's final order finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 (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 (Z0610)
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 7, 2012
__________________
Date
1 Complainant's complaint originally included three additional claims surrounding his employment while working for the Agency from September 2004 to December 2006 in the capacity of a reproductive health advisor in Ghana, Africa. In a prior decision, the Commission determined these issues were untimely raised. EEOC Appeal No. 0120091503 (August 11, 2009).
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01-2011-2942
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112942