Ramiro R.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.Download PDFEqual Employment Opportunity CommissionNov 16, 20180120172263 (E.E.O.C. Nov. 16, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ramiro R.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Appeal No. 0120172263 Hearing No. 510201500035X Agency No. 130020703197 DECISION On June 14, 2017, 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 May 18, 2017, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Fire Protection Specialist, GS-0081-09, who was also temporarily assigned to the Assistant Chief (AC) of Training position, GS-11, at the Agency’s First Coast Navy Fire and Emergency Services, Mayport Naval Station (NS) facility in Jacksonville, Florida. On December 31, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment, on the basis of reprisal for prior protected EEO activity under Title VII, when: 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. 0120172263 2 1. On September 12, 2013, he was assigned additional manning duties on his 24- hour shift and required to report to a junior fire fighter within the department;2 2. On September 16, 2013, he was informed that his presence was not required at a scheduled meeting with First Coast Fire and Emergency Services at the Jacksonville Fire Rescue Division (JFRD) Training Academy; 3. On October 25, 2013, an email was sent informing the Fire Fighter Chiefs and Explosive Ordnance Disposal (EOD) staff to disregard Complainant’s email regarding scheduled training; 4. On October 25, 2013, Complainant was made aware that a manager had threatened to “get even” with those who stand up to management; 5. On November 21, 2013, Complainant was asked to fill-in on his 24-hour shift and to report to someone junior to him; 6. On December 6, 2013, a management official stopped by Complainant’s work area to discuss a training issue with less than 10 minutes remaining in the work day; 7. On December 6, 2013, Complainant was excluded from the 59-minutes early departure time, that was granted to other employees; 8. On December 8, 2013, Complainant’s temporary promotion was not converted to a permanent position; and. 9. On December 9, 2013, management proposed an inaccurate settlement agreement which required Complainant to give up his employee rights, and 10. On January 30, 2014, the Agency dismissed his reprisal allegation when the Agency determined that his attempts to settle an employee’s claim did not state a new claim of discrimination or retaliation. The Activity dismissed claims 9 and 10 for failure to state a claim, The Agency affirmed the dismissal. The Department of Defense, Investigations and Resolutions Division investigated claims one through eight. 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 AJ remanded the complaint to the Agency, which issued a final decision pursuant to 29 C.F.R. § 1614.110(b). This appeal followed. Complainant has a number of other appeals pending with us.3 2 During the period at issue, Complainant was detailed to a temporary Supervisory Fire Protection Specialist, GS-0081-11, position, which expired on December 8, 2013. 3 Complainant has a second open appeal, docketed as Appeal 0120180902. That appeal pertains to two EEO complaints that were consolidated for by the AJ and are referenced as EEOC No. 510-2015-00271X / DON No. 14-00207-02725 (2nd Complaint) and EEOC No. 510-2017- 00103X / DON No. 16-00207-01611 (3rd Complaint). The issues in those two complaints pertain to incidents that occurred after January 30, 2014. 0120172263 3 The record shows that Complainant had prior known and ongoing EEO activity. Specifically, Complainant had prepared a written statement dated July 1, 2013, in an EEO case for a coworker Firefighter; agreed to be a witness in a second employee’s EEO case, and made EEO contact himself, on September 16, 2013, in the instant case. S2 had been named in the EEO complaints filed by the individuals for whom Complainant filed supporting statements or served as a witness. Complainant first level supervisor was the Supervisory Fire Protection Specialist / Fire Chief (S1), and his second level supervisor was the Executive Officer (S2). Complainant averred that two or three weeks prior to September 16, 2013, S1 became aware of Complainant’s EEO participation on the other complaints, because Complainant advised S1 that Complainant had agreed to be a witness for one employee and to write a statement for the other employee. Complainant asserted that he voiced his opposition to the way in which management had treated those other employees. Claims 1 and 5 – Assigned Additional Staffing Duties On September 12, 2013, S1 explained that he had to leave work due to a medical emergency. S1 called Complainant to ask him to cover. S1 advised Complainant that the Mayport Fire Station was short on staff and he told Complainant to report to the Supervisory Fire Protection Specialist (CW1), GS-0081-11. S1 indicated that Complainant was the only other GS-11 employee not assigned to an Operations position and qualified (to ride a fire vehicle in an emergency) as an Assistant Chief of Operations. When Complainant arrived, CW1 told Complainant to man whatever station the Station Chief needed him to fill. The position which needed to be covered was a Crew Chief position, that was usually manned by a GS-07 Firefighter. Complainant alleged that he had not received proper proficiency refresher training for that position. Complainant averred that he and another employee, identified as “SCF,” exchanged positions. In addition, on November 21, 2013, S1 instructed Complainant to fill-in for a position for an employee who was subordinate to CW1. Complainant averred that doing so would cause Complainant to miss a meeting with the NAS Installation Trainer, which training was scheduled for this same time period. S1 informed Complainant that he needed Complainant to fill-in at Operations to avoid the costly payment of overtime hours by the Department. Complainant informed S1 of the meeting schedule conflict. and he was not required to fill-in. Complainant attended his meeting with the NAS Installation Trainer. Claims 2, 3, 4 and 6 – Told Not to Attend a Meeting Complainant had been told by S1 that he should attend the meetings at the Jacksonville Department Fire Rescue Division (JFRD) Training Academy, because attending the planning meetings was in line with Complainant’s job description. On the morning of the September 9, 2013, S1 told Complainant not to attend. S1 sent CW1 to the meeting, instead of Complainant. 0120172263 4 Complainant averred that S1 told him not to attend, because S1 was upset with Complainant for complaining about an inappropriate assignment. S1 admitted that, on September 16, 2013, he informed Complainant that Complainant’s presence at a scheduled meeting with the First Coast Fire and Emergency Services at the Jacksonville Fire Rescue Division (JFRD) training academy was not required. S1 expressly told Complainant not to attend the September 16, 2013 meeting, in part, because he was upset with Complainant for complaining about the alleged inappropriate assignment made the week before, when Complainant was assigned to report to a lower ranking employment on September 12, 2013 by the Assistant Chief of Operations (AC). Complainant did not allege that he was harmed by not being sent to the meeting. Complainant’s E-Mail Disregarded On October 25, 2013, Complainant was copied on an email from the Chief of Explosive Ordinance Disposal (EOD), notifying personnel that the “EOAD would conduct refresher training between the hours of 9:00 am and 12:00 pm on November 12, 2013.” Complainant replied to EOD’s email with his own notification of an apparent scheduling conflict and asked if the EOD could reschedule its training. CW1 replied, telling employees to disregard Complainant’s email. Complainant maintained the he was embarrassed by that action and did not feel that it was ever appropriate to tell others to “disregard” what someone else said. CW1 told Complainant that the reason he told others to disregard Complainant’s email was because he understood that the Lead Firefighter had a different plan for the firefighters to accomplish the training. Complainant asserted that he did not understand how the firefighters could hold two different training classes in the same classroom at the same time. CW1’s training was overridden by the Fire Chief, and the EMS training went on as planned. Alleged Threat Complainant’s Union Representative told Complainant that CW1 had said to another employee that “He would get even within anyone filing a grievance even if it took him three or four years.” The date of this statement was not shown in the record, but was believed to be between 2007 and 2009, and directed at another employee. The union representative witnessed CW1 make the threatening statement, which was directed at a retired employee. Late Day Visit On Friday, December 6, 2013, the AC was invited by the Executive Officer of the Naval Station Mayport to attend a meeting to discuss a Marine Corps Reserve Unit exercise that was occurring onboard the installation from December 6 – 8, 2013. The meeting was scheduled to occur in the executive conference room in Building 1. Complainant’s office was also located in Building 1. When the AC entered the building a few minutes prior to the meeting’s start time, he stopped at Complainant’s office to ask him about the possibility of sending a paramedic to a training course that would allow him to assist with the recertification requirements for the FCFES staff. 0120172263 5 Claim 7 – Excluded from the 59 Minutes Early Departure On December 6, 2013, S1 (the Fire Chief) granted 59 Minutes Administrative Leave to the FCFES Inspection Department staff. He averred that “This was granted verbally, as he had always done in the past.” S1 told the first person he saw that he was authorized 59 minutes and told that person to relay the message to the rest of the personnel. Complainant averred that he did not take 59 minutes that day, because S1 did not specifically tell him in person that he was authorized to take the 59 minutes. Complainant also did not request 59 minutes. S1 contended that all Complainant had to do was to ask about the 59 minutes for early departure. S1 maintained that he does not call to notify each 8-hour employee regarding the availability of early departures. S1 acknowledged that he has rewarded the inspectors by allowing them to leave early in instances when they came to work earlier than scheduled or worked a difficult problem. Complainant is not a GS-8 inspector. S1 stated that he had never denied Complainant the opportunity to leave early. Claim 8 – Temporary Position Not Converted to Permanent Position As background, Complainant was promoted to Assistant Training Officer, GS-0081-09, position in November 2010. On February 25, 2012, Complainant had been detailed to the AC Training position by Fire Chief (FC) to perform the AC Training duties while AC was serving overseas. The detail period was from February 25, 2012 to February 28, 2013. On March 1, 2013, Complainant detail was extended as AC had permanently vacated the position around October of 2012. The extended detail period was from March 2013 to August 10, 2013. Complainant contends that the Agency acknowledged that Complainant received a temporary promotion to GS-11 Supervisory Fire Protection Specialist on August 11, 2013, citing the Agency’s Summary Judgment Response, Attachment 1, p. 67. Meanwhile, on June 12, 2013, Complainant met with S1, the Regional Fire Chief (RFC) and the Labor and Employee Relations Specialist Mike Hoff. The parties discussed the AC Training duties that Complainant was performing and those duties which were additional duties to those listed in the PD. There was consideration of an accretion of duties promotion. As discussed during the June 12, 2013 meeting, the PD for the GS-11 AC Training position was re-written, in part by Complainant. A position description (PD) was sent to the staffing and classification division. However, upon learning that the FCFES intended to promote Complainant into the newly re-written GS-11 AC Training position via accretion of duties, the personnel experts expressed a concern that this could not be accomplished via an accretion of duties promotion, because Complainant permanently occupied a GS-09 position, not the GS-11 position that was gaining duties. On August 11, 2013, Complainant was temporarily promoted to the AC Training position. The temporary promotion was limited and not to exceed December 8, 2013. 0120172263 6 On December 9, 2013, Complainant’s temporary promotion expired. He reverted back to his GS- 9 Assistant Training Officer position. Although Complainant asserted that he met the final certification requirements to fill the GS-11 permanent position and had been performing duties at the GS-11 level, Complainant was not permanently placed into the GS-11 Training position via accretion of duties.4 S1 asserted that there was no agreement to move Complainant into a permanent GS-11 position. Complainant was not placed into the GS-11 AC Training position via accretion of duties. The Agency Decision The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency determined that the incidents referenced were not motivated by retaliation and that Complainant did not present evidence that a fact-finder could use to show pretext of the Agency’s articulated reasons. Those reasons were that management asked him to substitute for others in order to maintain an appropriate staffing level. In addition, he was denied promotion via accretion of duties, because it was not viewed as appropriate since Complainant was officially assigned to assigned a different position. The other actions were deemed to be within management’s discretion. The Agency found that Complainant failed to show pretext and failed to show an unlawful hostile environment, because Complainant did not establish that management was motivated by unlawful animus or that the conduct was severe or pervasive to establish a hostile work environment. The Agency concluded in DON No. 13- 00207-03197, that Complainant failed to demonstrate that the alleged incidents of harassment were more than petty slights, minor annoyances or general workplace civility issues. This appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant raises concerns regarding the incidents that occurred in 2014, including the denial of promotions which are the subject of another appeal, EEOC Appeal 0120180902. With regard to the appeal before us, Complainant maintains: (1) the FAD applied an incorrect legal standard. (2) failed to analyze all of his claims; and 3) failed to consider the totality of his evidence. Complainant did not directly reference the dismissal of his breach claims. In response, the Agency stated the FAD is supported by the record and legally sufficient. 4 The record shows that Complainant was ultimately selected for the GS-11 AC Training position via a Manager’s Identification of Candidates, effective March 23, 2014. Exhibit 8. 0120172263 7 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”). Initially, we note that Complainant does not challenge the dismissal of his allegations regarding his breach claims, noted as claims 9 and 10. We consider those claims waived in this appeal. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, 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. See 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. See 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 a pretext for discrimination. 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); Burdine, 450 U.S. at 256. Even assuming that Complainant established the elements of his prima facie claims, we find that the Agency articulated a legitimate, non-discriminatory reason for its actions. Further, we find that Complainant did not offer sufficient evidence that the stated reasons were a pretext for unlawful retaliation. Harassment To establish a claim of hostile environment harassment, a complainant must show that: (1) he or she belongs to a statutorily protected class; (2) he or she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) that 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. 0120172263 8 Harris v Forklift Systems, Inc., 510 U.S. 17 (1993); Also See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Will K. v. Dep’t of Veterans Affairs (Veterans Health Administration), EEOC Appeal 0120142904 (Oct. 18, 2016). In other words, to prove a harassment claim, Complainant must establish that he 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. Meritor Savings Bank F.S.B v. Vinson, 477 U.S. 57 (1986). We find that Complainant did not meet this standard. We are also not persuaded that the Agency failed to consider the totality of Complainant’s claims or the evidence presented with regard to this first complaint. We note that most of Complainant’s objections pertain to the non-selection issues that are the subject of his second complaint, which is not before us in this appeal. For these reasons, we find that Complainant did not show by a preponderance of the evidence that he was subjected to unlawful discrimination, as alleged. 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. 0120172263 9 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 November 16, 2018 Date Copy with citationCopy as parenthetical citation