[Redacted], Jeffry R., 1 Complainant,v.Martin J. Walsh, Secretary, Department of Labor, Agency.

Equal Employment Opportunity Commission

Jul 19, 2021

Appeal No. 2020001620 (E.E.O.C. Jul. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jeffry R.,1 Complainant, v. Martin J. Walsh, Secretary, Department of Labor, Agency. Appeal No. 2020001620 Agency No. CRC-17-04-113 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 4, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue is whether Complainant established that the Agency subjected him to discrimination or harassment in reprisal for prior protected EEO activity. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Industrial Hygienist at the Agency’s Occupational Safety and Health Administration Office in Tampa, Florida. 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. 2020001620 2 Complainant stated that he was approved to work from home as an Alternative Duty Station (ADS) by his first-line supervisor (S1), and that he worked approximately 3-4 ADS days per week. Report of Investigation (ROI) at 72. On April 13, 2017, S1 emailed Complainant to inform him that ADS would not be granted to manage the lapse time and progress of Complainant’s cases.2 S1 also stated that they would meet every morning that Complainant was not in the field, and that Complainant would submit his case at the end of the day so that they could determine how much progress was made in the case. ROI at 88. Complainant stated that on or around April 24, 2017, he received his mid-year performance review from S1. Complainant stated that he received negative feedback regarding his lapse time, number of cases, and statistics. ROI at 76-77. Complainant stated that on April 24, 2017, S1 gave him leave restrictions, such as requesting leave in advance. ROI at 78-79. Complainant stated that on May 12, 2017, S1 returned case files that he deemed insufficient for additional information, above and beyond the Field Operations Manual (FOM) requirements. ROI at 81. On September 28, 2017, Complainant’s second-line supervisor (S2) issued Complainant a leave restriction letter and notified him of the requirements for his future attendance practices. S2 noted that S1 had previously warned Complainant in April 2017 about the concerns of his attendance and that, if the problems were not corrected, restrictions could be placed on his use of leave. ROI at 89-94. EEO Complaint On September 1, 2017, Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination and harassment in reprisal for prior protected EEO activity (Agency case number 17-04-156) when: 1. on April 17, 2017, S1 revoked Complainant’s ability to work from “ADS/home,” required him to check-in every morning and afternoon, and issued him a negative mid-year performance review; 2. on April 24, 2017, S1 imposed restrictions on Complainant’s use of sick leave, without imposing similar restrictions on his coworkers; and 3. on May 12, 2017, S1 imposed additional work requirements upon Complainant and required him to provide additional details in his reports. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). 2 Lapse time is the number of days a case is open with a compliance officer. ROI at 175. 2020001620 3 The Agency assumed, without deciding, that Complainant established a prima facie case of reprisal and found that management officials articulated legitimate, nondiscriminatory reasons for their actions. The Agency then found that Complainant did not satisfy his burden to show that the reasons were pretexts for reprisal. The Agency also found that Complainant did not establish that he was subjected to retaliatory harassment. The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant filed the instant appeal and submitted a brief in support of his appeal. The Agency opposed Complainant’s appeal. CONTENTIONS ON APPEAL Complainant’s Contentions Through his attorney, Complainant argues that he established a prima facie case of reprisal, the Agency failed to provide a reasonably specific basis for its decisions related to his case management and lapse time, and he established pretext for discrimination. Complainant also requests sanctions against the Agency. Complainant states that he established pretext for discrimination because the Agency’s reasons were weak, implausible, or incoherent. Complainant states that the Agency failed to reconcile the contradiction between his satisfactory performance for several years prior to the filing of his EEO complaint and its “sudden change of opinion” of his performance after he complained, and that he presented evidence that he performed the same before and after his EEO complaint. Complainant states that a July 2016 email was a “routine follow up,” and that there was nothing in the record which mentions a failure to produce sufficiently detailed work. In addition, Complainant states that he showed that acting supervisors did not find fault with Complainant’s work, which was then subsequently “marked up unnecessarily” by S1. Complainant states that S1 confirmed that Complainant’s ADS was still restricted because his lapse time did not improve. However, Complainant asserts that his lapse time improved from 107 days to 97 days, and that S1’s testimony is “demonstrably false.” Complainant states that the Agency failed to obtain evidence of his case files or diary sheets; or that there were any informal deadlines required under Agency policy. Regarding the sick leave restriction, Complainant states that he was never denied or questioned about his sick leave prior to his EEO activity, and that the Agency never presented evidence of a pattern of abuse of his sick leave. Complainant also argues that the Agency should be sanctioned for failing to properly develop the record. Complainant asserts that S1 and S2 “feigned ignorance” about his claim of additional work requirements. He contends that they received his formal complaint and other materials and therefore knew the specific nature of his allegations. Complainant further argues that the Agency failed to obtain his sick leave records, case file diary sheets, and case file reports; and failed to interview two of his “most important” witnesses who reviewed his work product. Complainant alleges that the Agency obstructed production of evidence during the hearing stage. 2020001620 4 Complainant requests that the Commission reverse the Agency’s final decision and enter judgment in his favor. Agency’s Contentions The Agency asserts that it properly found in its final decision that the evidence was insufficient to establish that Complainant was discriminated against or harassed in reprisal for his prior EEO activity. For claim 1, the Agency notes that Complainant ignored internal deadlines, that S1 explained that only complex cases should be open beyond 60 days, and that Complainant’s average lapse time, including many non-complex cases, was 105 days, which is far beyond the 60-day deadline. The Agency states that, from July 2016 through February 2017, S1 made at least eight attempts to address Complainant’s open cases and lapse time. In addition, the Agency asserts that S1 continued to express the same concerns, after Complainant filed his EEO complaint, and that S1 terminated Complainant’s ADS and set meetings to discuss his cases to help manage Complainant’s caseload. The Agency states that managers do not typically provide ratings during the mid-year review and that S1 gave Complainant constructive feedback. For claim 2, the Agency states that S1 informed Complainant that his repeated absences were a concern and appeared to be an abuse of leave. The Agency notes that Complainant took leave without pre-approval and he would often send S1 emails the same day, stating “leave,” without further explanation. The Agency states that S1 reminded Complainant of the proper use of sick leave and how to request it, pursuant to the collective bargaining agreement (CBA). For claim 3, the Agency states that S1 did not impose additional work requirements on Complainant, but that S1 required all staff to obtain necessary information needed to issue a citation and defend a case. The Agency asserts that Complainant did not establish pretext for discrimination. For example, regarding Complainant’s performance evaluation, the Agency notes that the mere fact that a complainant previously received a higher performance evaluation does not support an inference of discrimination, particularly when a complainant does not provide evidence of discriminatory or retaliatory animus. The Agency also notes that Complainant did not dispute that he used more than 200 hours of sick leave, most of which coincided with weekends or scheduled meetings, and that Complainant’s disagreement with the decision to restrict his sick leave was not sufficient to show pretext for retaliation. Regarding Complainant’s claim that acting supervisors did not have any issues with his work, the Agency argued that even if true, such limited supervision is not sufficient to establish pretext. The Agency also determined that since Complainant did not establish that any of the complained of conduct was motivated by retaliation, he did not show that he was subjected to a hostile work environment. The Agency argues that Complainant’s argument for sanctions is inappropriate, unsupported, and frivolous. The Agency notes that Complainant did not raise any of his concerns after he received the ROI for review. The Agency also asserts that management could not entirely respond to Complainant’s allegation of additional work requirements because no such additional requirements existed for Complainant. The Agency notes that the investigator obtained relevant emails regarding Complainant’s attendance, case files, and lapse time. 2020001620 5 The Agency asserts that additional witness interviews were unnecessary and inefficient, and Complainant did not provide any evidence or credible argument that not interviewing those individuals affected the outcome of the investigation. In addition, the Agency asserts that Complainant failed to provide full, responsive answers to the questions presented in his affidavit, and that where the EEO investigator has asked a complainant specific questions and that individual has failed to furnish the requested information, any deficiency in the record preventing the individual from meeting his burden of proof is not attributable to the agency’s inability to conduct a proper investigation. The Agency requests that the Commission affirm its final decision. ANALYSIS AND FINDINGS 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 Chap. 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”). Sanctions Sanctions serve a dual purpose. On the one hand, they aim to deter the underlying conduct of the non-complying party and prevent similar misconduct in the future. Barbour v. U.S. Postal Serv., EEOC Appeal No. 07A30133 (June 16, 2005). On the other hand, they are corrective and provide equitable remedies to the opposing party. Given these dual purposes, sanctions must be tailored to each situation by applying the least severe sanction necessary to respond to a party’s failure to show good cause for its actions and to equitably remedy the opposing party. Royal v. Dep’t of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009). Several factors are considered in “tailoring” a sanction and determining if a particular sanction is warranted: 1) the extent and nature of the non-compliance, and the justification presented by the non-complying party; 2) the prejudicial effect of the non-compliance on the opposing party; 3) the consequences resulting from the delay in justice; and 4) the effect on the integrity of the EEO process. Gray v. Dep’t of Def., EEOC Appeal No. 07A50030 (Mar. 1, 2007). On appeal, Complainant requested that the Commission sanction the Agency for failing to properly develop the record. Complainant asserted that S1 and S2 “feigned ignorance” about his claim of additional work requirements, that they received his formal complaint and other materials, and that they knew the specific nature of his allegation. 2020001620 6 However, there is no evidence that S1 or S2 received additional materials related to Complainant’s EEO complaint. The record shows that the EEO investigator only sent S1 and S2 their affidavits and certification pages, with instructions and the investigator’s certificate of service and authorization. ROI at 297-99, 344-46. In their affidavits, S1 and S2 responded that they did not know what additional work requirements Complainant was referring to when asked about the allegation. ROI at 184-86, 313. Complainant stated that the additional work requirements were “additional employer knowledge, additional employee exposure, additional affirmative defenses, additional narration, additional statements, and additional narration and photographs for no citation issued inspections.” ROI at 81. We find that these alleged additional work requirements were vague, and that S1 and S2 did not “feign ignorance” when they responded that they did not know what additional work requirements Complainant was referring to because he did not provide any specific examples. In addition, there is no evidence that the Agency obstructed Complainant’s attempts to obtain evidence during the hearing stage. Rather, the record shows that the AJ denied Complainant’s requests to include 1,800 pages of what appeared to be discovery because Complainant did not provide any explanation as to how they specifically related to any specific parts of his claims, which was "tantamount to seeking approval for a document dump." Regarding the lack of statements from his two “most important witnesses,” we note that there is no indication that Complainant raised this with the Agency prior to the conclusion of the investigation.3 While Complainant also argued that the Agency failed to obtain his sick leave records, case file diary sheets, and case file reports, the record contains relevant documents for his claims. Based on the facts of this case, we find that Complainant has not shown that sanctions against the Agency are warranted. Disparate Treatment Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he 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. Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. 3 The record contains affidavits from two of Complainant’s named witnesses. ROI at 348-52, 357-60. 2020001620 7 At all times, Complainant retains the burden of persuasion, and it is his obligation to show 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); U.S. Postal Serv. v. Aikens, 460 U.S. 711, 715-716 (1983). Assuming, arguendo, that Complainant established a prima facie case of retaliation, we find that the Agency proffered legitimate, nondiscriminatory reasons for its actions. For claim 1, S1 stated that he had several discussions with Complainant about his need to reduce the number of open cases and improve his lapse time. S1 stated that he informed Complainant that he would temporarily restrict his ADS until they got a handle on Complainant’s cases and lapse time. ROI at 174-75. S1 stated that on April 24, 2017, he conducted a mid-year performance review with Complainant. S1 stated that the mid-year review is an opportunity to discuss an employee’s progress and the areas of improvement, and in Complainant’s case, he needed to improve his lapse time, which was 105 days. S1 noted that cases that are open more than 60 days should be complex, that health cases should take around 50 days to complete and safety cases 40 days, and that Complainant’s cases were open double that amount of time. ROI at 178-79. S2 stated that he concurred with S1’s decision to restrict the ADS because Complainant was not completing and submitting his cases in a timely manner. ROI at 307. Regarding claim 2, S1 stated that he did not impose leave restrictions on Complainant but discussed the proper use of sick leave. S1 stated that he explained that Complainant’s pattern of sick leave use was occurring frequently on Mondays and Fridays, and during mandatory and team meetings. S1 added that he informed Complainant of the proper use of sick leave according to Article 40 of the CBA. S1 noted that Complainant was subsequently issued a Leave Restriction Letter on September 28, 2017. ROI at 181-82. For claim 3, S1 stated that, while each case is different, he generally asks for the same information from all compliance officers and that each case file must contain a prima facie case of a safety or health violation. S1 stated that it was possible that he notified Complainant that one of his case files was deficient or lacking specific details, and that he provides comments where changes are required. S1 stated that, because he did not know which report Complainant referred to, he was unable to provide a specific response. S1 added that FOM was a guidance and does not address information needed for a specific case. ROI at 185-86. We find that Complainant has not shown that the proffered reasons were pretexts for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). 2020001620 8 On appeal, Complainant argued that he established pretext for retaliation because the Agency’s reasons were weak, implausible, or incoherent. Complainant stated that the Agency failed to reconcile the contradiction between his satisfactory performance for several years prior to the filing of his EEO complaint and its “sudden change of opinion” of his performance after he complained, and that he presented evidence that he performed the same before and after his EEO complaint. However, the record does not support a “sudden change of opinion” of Complainant’s performance following his EEO complaint because there are examples of S1’s emails, sent prior to his learning of Complainant’s EEO activity, regarding cases that were older than 60 days. S1 stated that he learned of Complainant’s EEO activity on or about November 29, 2016, and S1 sent these emails from July 17, 2016, through October 21, 2016. ROI at 173, 220-25. While Complainant asserted that a July 2016 email was a “routine follow up,” we note that S1 sent other emails with lists of Complainant’s cases that were older than 60 days. Complainant also argued that there was nothing in the record which mention a failure to produce sufficiently detailed work, but an email sent on July 19, 2016, noted that a case was still “open with no citation.” ROI at 221. We find that Complainant’s disagreement about the quality of his work and S1’s deadlines does not establish pretext for retaliation. Complainant also asserted that he showed that acting supervisors did not find fault with his work, which was then subsequently “marked up unnecessarily” by S1, but we find that Complainant did not specify the cases or comments to allow S1 to provide a meaningful response. As such, we find that Complainant did not prove that S1 “unnecessarily” found fault with his work. Complainant argued that S1 stated that Complainant’s ADS was still restricted because his lapse time did not improve, which was “demonstrably false,” because his lapse time improved from 107 days to 97 days. However, in Complainant’s annual performance evaluation, S1 noted that Complainant’s lapse time was an overall of 97 days, and that while he did improve on his overall 107-day lapse time from his mid-year, the progress was not adequate. ROI at 99. As discussed above, S1 noted that Complainant’s deadlines were either 40, 50, or 60 days, depending on the type of case, and that 97 days was still beyond his deadlines. Regarding the sick leave restriction, Complainant asserted on appeal that he was never denied or questioned about his sick leave prior to his EEO activity, and that the Agency never presented evidence of a pattern of abuse of his sick leave. However, in his affidavit, Complainant stated that the “restrictions” were to request leave in advance and provide a medical certificate, which is supported by the CBA. ROI at 79. The CBA stipulates that sick leave should be requested in advance; when an employee calls in to request leave, he should leave a phone number where he can be reached, if the supervisor is not available; and a medical certificate should be provided for sick-leave absences greater than three consecutive days. ROI at 369-70. The record shows that Complainant emailed S1, “leave,” on the mornings he took leave, and S1 stated that Complainant would not specify the type of leave requested nor respond to emails or phone calls after sending his emails. ROI at 249-58, 182. We find that Complainant did not show that the Agency’s proffered reasons were unworthy of belief and he did not establish pretext for retaliation. 2020001620 9 We further find that the record contains evidence that undermines Complainant’s allegation that S1’s actions were in retaliation for his EEO activity. For example, Complainant repeatedly stated that he believed that S1 was retaliating against him because it appeared that S1 was “struggling with an inferiority complex because he is a little guy.” ROI at 74, 76, 77, 80. In addition, a witness (W1) stated that on July 14, 2017, he asked Complainant about the “tension” with S1, and Complainant responded that it started after S1 “tried to deny [Complainant’s] leave.” W1 also stated that Complainant shared with him on “many occasions” his issues with how S1 had been supervising him “for the last two years.”4 ROI at 359. We note that Complainant did not dispute W1’s testimony and find that these statements show that Complainant believed that there were other motives for S1’s actions, and that issues between S1 and Complainant arose prior to his EEO activity. As such, we find that Complainant did not establish that the Agency subjected him to reprisal for prior protected EEO activity. Harassment As discussed above, we found that Complainant did not establish a case of reprisal for his prior protected EEO activity. A case of harassment is precluded based on our finding that Complainant did not establish that any of the actions taken by the Agency were motivated by retaliation. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Accordingly, we find that Complainant did not show that the Agency subjected him to harassment in reprisal for his prior 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 Agency’s final decision finding that Complainant did not establish that the Agency subjected him to discrimination or harassment in reprisal for prior protected EEO activity. 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 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. 4 W1 signed his affidavit on January 10, 2018. ROI at 360. 2020001620 10 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. 2020001620 11 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 July 19, 2021 Date