[Redacted], Carl Y., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity Commission

Mar 24, 2021

Appeal No. 2020000377 (E.E.O.C. Mar. 24, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Carl Y.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice, Agency. Appeal No. 2020000377 Agency No. OBD-2006-00107 Hearing No. 530-2014-00025X DECISION On September 4, 2019, 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 August 29, 2019, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUES PRESENTED The issues presented are whether Complainant established that he was subjected to a hostile work environment and whether he established that he was constructively discharged. 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. 2020000377 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Auditor, GS-0511- 14, at the Agency’s Fraud Section, Civil Division in Washington, D.C. Complainant stated that he worked with the Agency from the summer of 2004 through January 2006. According to Complainant, beginning in September or October 2005, he was shunned and ostracized, and his supervisors would not talk to him once he informed his first-line supervisor (S1) that he had an EEO case against his prior employer, the Internal Revenue Service. Complainant alleged that he requested sick leave on December 23, 2005, and when he returned to work on December 27, 2005, he received an email from S1 that was sent with discriminatory and retaliatory intent.2 A copy of the email in the record indicates that S1 emailed Complainant, notifying him that eight hours of sick leave were approved. However, she wanted him to know that the circumstances of his unscheduled leave were suspicious following nine days of administrative leave. S1 noted that she had the option of requiring medical documentation to support his request and informed Complainant that future unscheduled absences could result in a request for medical documentation. S1 went on to state that she had an issue with Complainant calling when she would not be available to take his call or approve or disapprove his leave. She instructed Complainant to call early in the business day to request future leave or leave a number where he could be reached in emergency situations. Complainant stated that in early 2006, S1 and the Assistant Director requested a meeting to tell him that they were not happy and that they would be taking disciplinary action against him. Complainant stated that the meeting ended abruptly when he requested his attorney. According to S1 and the Assistant Director, the meeting was scheduled to discuss performance issues, including missed deadlines, and Complainant was never threatened with disciplinary action. On February 17, 2006, Complainant filed an EEO complaint alleging that the Agency discriminated against and subjected him to a hostile work environment on the bases of race (Asian Indian), national origin (Asian Indian), sex (male), religion (Hindu), color (Black), age (53), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when he was constructively discharged from the Civil Division in February 2006. 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 requested a hearing. However, because Complainant failed to comply with the AJ’s discovery orders, the Agency filed a motion for sanctions. 2 Complainant was on approved administrative leave from December 12, 2005 through December 22, 2015, to participate in a jury trial for his prior EEO claim. 2020000377 3 The AJ granted the Agency’s motion, dismissed Complainant’s hearing request, and remanded the complaint to the Agency for issuance of a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The final Agency decision (FAD) explained that with respect to discrimination based on age, the responsible management officials were over the age of 40 and approximately the same age as Complainant, which undermined Complainant’s argument that discriminatory animus existed because of his age. The FAD went on to find that the responsible management officials lacked knowledge of Complainant’s membership in his other protected classes and that the evidence of record failed to impeach management officials’ statements. Moreover, the Agency noted that it was undisputed that the responsible management officials had participated in hiring Complainant and, while they knew he belonged to at least some protected groups, they were entitled to at least a partial inference of non-discrimination with respect to their decisions concerning Complainant based on their input into Complainant’s selection. The FAD stated that there was no evidence to show that any Fraud Section manager created intolerable working conditions for Complainant. Rather, the evidence showed, at most, that S1 criticized Complainant for questionable use of sick leave even though she approved the sick leave. The Agency found that the evidence further showed that S1 and the Assistant Director sought to meet with Complainant concerning his job performance. In the FAD, the Agency concluded that management officials cited legitimate, nondiscriminatory reasons for correcting Complainant and the documentary evidence supported their statements. Finally, the Agency stated that it found it unlikely that Complainant had been subjected to intolerable work conditions because he sought reemployment in the same section with the same supervisors three weeks after his departure. The Agency added that no evidence supported Complainant’s claims that managers threatened him with disciplinary action and ostracized him, stating such treatment would not give rise to a constructive discharge claim even if it occurred. The Agency found that Complainant’s constructive discharge claim was further undermined by the fact that nothing in the record impeached S1’s statement that Complainant had been seeking other employment since December 2004, which predated the incidents in question. CONTENTIONS ON APPEAL Complainant did not submit statements in support of his appeal. In response to Complainant’s appeal, the Agency asserts that the AJ properly sanctioned Complainant by viewing his failure to participate in the discovery process as withdrawal of his hearing request. Additionally, the Agency contends that Complainant failed to establish sufficient causal connection for reprisal because his prior EEO activity involved another agency and the responsible management officials were not involved. It reasserts that management provided legitimate, nondiscriminatory reasons for their actions. 2020000377 4 The Agency maintains that the FAD correctly determined that the record does not support Complainant’s contention that he was constructively discharged. STANDARD OF REVIEW 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”). ANALYSIS AND FINDINGS Dismissal of Hearing Request As an initial matter, we note that under 29 C.F.R. § 1614.109, Administrative Judges are granted broad discretion in the conduct of administrative hearings, including the authority to sanction a party for failure, without good cause shown, to fully comply with an order. See Malley v. Dept. of the Navy, EEOC Appeal No. 01951503 (May 22, 1997). Sanctions must be tailored in each case to appropriately address the underlying conduct of the party being sanctioned. A sanction may be used to both deter the non-complying party from similar conduct in the future, as well as to equitably remedy the opposing party. Factors pertinent to “tailoring” a sanction, or determining whether a sanction is, warranted, would necessarily include the extent and nature of the non-compliance, to include the justification presented by the noncomplying party; the prejudicial effect of the noncompliance on the opposing party; the consequences resulting from the delay in justice, if any; and, the effect on the integrity of the EEO process. If a lesser sanction would suffice to deter the conduct and to equitably remedy the opposing party, an AJ may be abusing her discretion to impose a harsher sanction. See Gray v. Dep't of Def., EEOC Appeal No.07A50030 (Mar. 1, 2007). Here, Complainant does not challenge the AJ’s entry of sanctions and denial of his hearing request. In any event, we note that the AJ's order demonstrates that Complainant failed to respond to the Agency’s Motion for Sanctions and failed to comply with the AJ’s orders and directives. The AJ noted that Complainant had objected to the Agency’s interrogatories without good cause and without engaging with Agency counsel to try to resolve the matter. The AJ further noted that she had issued orders cautioning Complainant that engaging in bad faith was not acceptable and would result in sanctions going forward. Still, Complainant ignored the AJ’s subsequent written directives and failed to appear at his deposition. 2020000377 5 The AJ made it clear that she had given Complainant multiple opportunities to provide the information sought by the Agency in the discovery process, and that Complainant had not done so. Complainant has not presented any argument or evidence tending to show that the AJ abused her discretion. Accordingly, we find that the AJ acted within the bounds of her regulatory authority when she granted the Agency's motion for sanctions and dismissed the hearing. Hostile Work Environment To establish a claim of harassment a 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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). Therefore, to prove his 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. Complainant must also prove that the conduct was taken because of his protected classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Here, we find that the alleged incidents were not sufficiently severe or pervasive to establish a legally hostile work environment. The Commission notes that Title VII is not a civility code. Rather, it forbids “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, the Commission finds that Complainant failed to show that the Agency’s actions were based on discriminatory or retaliatory animus. The record reflects that the alleged incidents were more likely the result of routine supervision, personality conflicts, and general workplace disputes and tribulations. For example, Complainant’s allegations of harassment involve attendance matters and supervisory feedback. The sick leave incident did not result in any adverse action and S1 reiterated that she found the sick day call to be suspicious as it was the Friday after he had been off for nine days and the day before a three-day weekend. Nevertheless, S1 approved Complainant’s sick leave request. As for the January 2006 incident, S1 affirmed that the meeting in question was scheduled to discuss Complainant’s performance and missed deadlines. S1 explained that Complainant failed to notify someone of a change in his return date and she had to enlist the help of other employees to complete Complainant’s task. She added that she had also learned that Complainant had not set up his voicemail and had not checked his messages. 2020000377 6 S1 stressed that Complainant was never told that disciplinary action would be taken. The Assistant Director corroborated S1’s testimony, stating that the meeting was held in his office to discuss concerns that S1 had regarding Complainant’s work performance and that no one told Complainant that disciplinary action would be taken. Complainant has not shown that he was subjected to a discriminatory or retaliatory hostile work environment. We find that the complained of conduct did not have the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment. Moreover, to the extent Complainant claims that he was subjected to disparate treatment, the Commission finds that, as discussed above, Complainant has not proffered any evidence from which a reasonable fact finder could conclude that the Agency’s explanation for its actions was pretext for discrimination or reprisal. Constructive Discharge To the extent that Complainant alleges that he was forced to resign because of the Agency’s discrimination, the Commission notes that 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. Carmon-Coleman v. Dep’t of Def., EEOC Appeal No. 07A00003 (Apr. 17, 2002). As stated above, the Commission finds that Complainant has not shown that the Agency’s actions were motivated by discriminatory or retaliatory animus. We further note, as did the Agency, that Complainant inquired about returning to the position in March 2006, which belies the argument that the working conditions were intolerable as alleged. S1 testified that Complainant had been observed printing job postings and applications since December 2004, and the record indicates that Complainant voluntarily applied for and accepted a different position. Thus, the Commission finds that Complainant cannot establish the necessary elements to prove constructive discharge. As a result, we find that Complainant was not subjected to discrimination, reprisal, a hostile work environment, or constructive discharge as alleged. 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 decision finding that Complainant was not constructively discharged, discriminated against, nor harassed, as alleged. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2020000377 7 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2020000377 8 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 March 24, 2021 Date