[Redacted], Lynwood R., 1 Complainant,v.Gina M. Raimondo, Secretary, Department of Commerce (Bureau of the Census), Agency.

Equal Employment Opportunity Commission

Jul 12, 2021

Appeal No. 2020001633 (E.E.O.C. Jul. 12, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lynwood R.,1 Complainant, v. Gina M. Raimondo, Secretary, Department of Commerce (Bureau of the Census), Agency. Appeal No. 2020001633 Agency No. 63-2019-00152 DECISION On December 23, 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 November 18, 2019, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue presented concerns whether the Agency subjected Complainant to discrimination and/or harassment based on age and disability with regard to time and attendance, training, as well as the Agency’s decision to not extend his temporary appointment. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Field Supervisor, GG-0303-06/01, in the Field Division of the Agency’s Los Angeles Regional Office (LARO) in Los Angeles, California. Complainant was initial appointed on September 18, 2017, for a term 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. 2020001633 2 not to exceed (NTE) beyond September 30, 2018. On September 16, 2018, the Agency extended Complainant’s term by six months, not to exceed beyond March 31, 2019. Complainant’s appointment expired as scheduled on March 31, 2019, and he was released from federal service. On April 8, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (physical) and age (over 40). Complainant subsequently requested an amendment to his complaint. The Agency ultimately accepted the following allegations of discrimination when:2 1. His first (S1) and second level (S2) supervisors tried to restrict his use of sick leave without cause; 2. The Agency failed to pay him for hours he worked; 3. He was provided with inadequate training; 4. He was subjected to abusive treatment by other employees to include two coworkers (C1 and C2). Examples of which include the following: a) During telephone training, C1 was verbally abusive towards him, including degrading him, insulting him, and being abusive towards him while he struggled with the complicated job tasks associated with the position; b) C1 often tried to push him beyond his physical limitations while doing telephone computer training; c) C1 sent him an email stating that he was to sustain from nourishment, refreshment, and rest breaks while working with C2; and d) C2 was short tempered at times; 5. He was removed from the position of Field Supervisor before the expiration date of his appointment; and 6. He was not informed that he was hired for an NTE position, and he was not extended in his position past the expiration date of March 31, 2019. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). 2 In his formal EEO complaint, Complainant also alleged that the Agency subjected him to reprisal for whistleblowing. The Agency, however, dismissed this claim for failure to state a claim, as the Commission has long held that allegations of reprisal for whistleblower activities are outside the purview of the EEO process. As Complainant has not challenged the dismissal on appeal, we need not address the propriety of the Agency’s decision. We note that Complainant did not allege denial of reasonable accommodation. 2020001633 3 In accordance with Complainant’s request, the Agency issued 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. In finding no discrimination, the Agency found that the individuals whom Complainant had accused of discrimination had legitimate, nondiscriminatory reasons for their actions, which Complainant could not persuasively rebut. The Agency further found that Complainant could not show that he had been subjected to a hostile work environment. This instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that the Agency’s final decision is a work of fiction based on lies and fabrications. Complainant asserts that the work environment at LARO was abusive, and he estimates that the attrition rate at LARO was “perhaps 50% or more in [his] 18 months of employment.” He takes particular issue with S1 whom he characterizes as inexperienced and “lacked the people skills that are only acquired with years of experience.” Complainant also characterizes C1, who helped trained him, as a bully with a tyrannical personality who overworked him, denied him nourishments and breaks, and forced him endure long hours of training. Complainant adds that C2, the second trainer, told him that it usually takes two years to fully train a supervisor and that he was doing well on the job, even though there were challenges in training him over the telephone. He maintains that he has a stellar background involving multi-million-dollar contracts and operating a construction business, which he believes counters “the lies offered by regional office staff and management.” The Agency did not submit any contentions in response to Complainant’s appeal. 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 We first consider claims 1, 2, 3, 5 and, 6, under the legal standard for disparate treatment. In those claims, Complainant alleged that the Agency subjected his to disparate treatment discrimination when his supervisors: tried to restrict his use of leave; failed to pay him for the hours that he worked; failed to inform him that his appointment was a NTE position; gave him 2020001633 4 inadequate training; removed him from his supervisory position prior to the expiration of his appointment; and refused to extend his appointment. A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Assuming arguendo that Complainant has established a prima facie case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory reasons for the alleged actions.3 With regard to claims 1 and 2, concerning Complainant’s leave usage and pay, S2 stated that he never tried to restrict Complainant’s use of sick leave, and to the best of his knowledge, neither did S1. ROI at 73. S2 could only recall receiving an email on April 3, 2019, from the office’s Administrative Officer who told him that Complainant was requesting 42 hours of sick leave, which was in excess of his sick leave balance of 38 hours. Id. S2 stated that he would need to check with S1 and the Regional Survey Manager, as he had only received a sick leave request totaling 32 hours. When he inquired with S1, S2 found that no additional request had been received. Id. As for the denial of Complainant’s pay, the Regional Survey Manager stated that Complainant’s final time and attendance record showed that Complainant was paid for 35 hours at his base pay rate and received payment for three hours of compensatory time, and 38 hours of sick leave. Id. at 83-84. 3 We note that S1 did not provide an affidavit during the EEO investigation, as he had already resigned from the Agency. 2020001633 5 Complainant also accrued four hours of leave without pay because he took 42 hours of sick leave, but only had 38 hours of sick leave available. The Regional Survey Manager stated that Complainant complained about not receiving pay for eight hours of annual leave; however, when the Regional Survey Manager checked with the S1, he learned that S1 had not approved Complainant’s request for annual leave. Id. The Regional Survey Manager maintained that even though Complainant’s annual leave request had been denied, Complainant still received payment for his unused annual leave upon leaving the Agency. Id. The Administrative Officer stated that a correction had to be made to Complainant’s payroll and that Complainant was ultimately fully compensated for his sick leave and annual leave balances. Id. at 86. As for claims 3, 5, and 6, S2 stated that Complainant was hired under a temporary appointment, originally not to exceed the date of September 30, 2018, but subsequently extended until March 31, 2019. ROI at 74-76. S2 emphasized that when Complainant was hired, Complainant’s offer letter expressly stated that the appointment was temporary in nature and included his NTE date. Id. S2 explained that Complainant received the same initial training as all the other supervisors. S2 also added that, in October 2018, the Agency brought Complainant over to the LARO for additional training. Id. S2 maintained that despite the additional training, he and S1 had concerns regarding Complainant’s performance, which ultimately resulted in Complainant receiving an “unsatisfactory” rating for Fiscal Year 2018. Id. S2 explained that S1 initially made the decision to let Complainant’s NTE position expire as scheduled on March 31, 2019, which he concurred. S2 added that he instructed S1 to inform Complainant in early March that his appointment would not be extended, as S2 felt that it was a courtesy to give Complainant notice in advance, rather than just inform him at the end of the month. Id. In arguing pretext for claims 1 and 2, Complainant stated that when he learned that his appointment would not be extended beyond March 31, 2019, he decided to use his sick leave for medical appointments. ROI at 51-52. However, S1 told him that he could not use sick leave for medical appointments. Id. Complainant asserted that since he knew that S1 was wrong, he decided to attend his medical appointments anyway and charge the hours he used to his sick leave balance. Id. Complainant stated he ultimately submitted his last time and attendance sheet with approximately 53 hours charged to his sick leave balance. Id. Complainant maintained that when he received his final paycheck, he noticed that he had only been paid for 40 hours of sick leave and had been denied 13 hours. Id. Complainant reasoned that since S1 had no right to arbitrarily disprove his sick leave, the reason for the denial must have been discrimination based on his age and/or disabilities. Id. With regard to claims 3, 5, and 6, Complainant asserted that he was not informed that he had been hired for an NTE position. Complainant maintained that he believed that his position was permanent, and it was not until he was in the process of filling out his life insurance paperwork that he learned about his NTE status. Complainant contended that the training that he received when he was hired was inadequate, as it consisted primarily consisted of training by telephone, coupled with in-class training that involved reading a manual. Complainant asserted that management refused to give him a government telephone, even though management allowed the Regional Survey Manager to have a government telephone. 2020001633 6 He opined that despite these challenges, his performance was still satisfactory, as evidenced by his first performance appraisal, which characterized his performance as “fully satisfactory.” Complainant asserted that he was shocked when received an “unsatisfactory” rating for the end of the fiscal year. Complainant emphasized that he was never given a reason for why his position was not extended. ROI at 52-54. Having reviewed the record, we find no evidence that Complainant was subjected to discrimination as alleged. With regard to Complainant’s claims 1 and 2, while we considered Complainant’s contention that S1 arbitrarily denied his leave requests, we find no evidence in the record that his sick leave requests were ever denied. ROI at 108-116 (showing that S1 approved all of Complainant’s sick in March 2019). We acknowledge that a correction was needed to address errors in Complainant’s last paycheck; however, we discern no evidence to causally link the errors to Complainant’s protected characteristics. As for claims 3, 5, and 6, while we understand that Complainant vehemently disagrees with the Agency’s characterization of his performance, we note that multiple people, including S1, S2, and C1, found Complainant’s performance to be subpar. We find no evidence showing that Complainant was treated less favorably than similarly situated individuals regarding training or subjected to a discriminatory performance evaluation. In reaching this conclusion, we acknowledge that the Agency extended Complainant’s appointment in September 2018, just two months before Complainant received the lowest performance rating for the fiscal year. However, we find such action, without more, to be insufficient to demonstrate pretext, particularly in light of the Agency’s repeated attempts to help Complainant improve. Furthermore, given the Agency’s concerns about Complainant’s performance, we cannot say that the Agency’s failure to extend his appointment was discriminatory. We turn now to Complainant’s hostile work environment claim. As an initial matter, we find that with the exception of claim 4, a finding of harassment is precluded on the remaining claims due to our determination that Complainant failed to establish that the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sep. 21, 2000). Our review of claim 4 is limited to subsections (a)-(c) because during the EEO investigation, Complainant expressly disavowed his initial allegation in subsection (d), concerning C2’s alleged short temper.4 To establish a claim of harassment on claim 4, 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 Agency. See Henson v. City of Dundee, 682 F.2d 4 During the EEO investigation, Complainant stated, “I know in claim 4(d) I stated that [C2] was short tempered at times, but on second thought[,] I no longer want to include anything about [C2] as part of this investigation. I generally have a good working relationship with [C2].” ROI at 52. 2020001633 7 897 (11th Cir. 1982). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). Further, the incidents must have been “sufficiently severe and 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); see also Oncale v. Sundowner Offshore Serv., Inc., 23 U.S. 75 (1998). With regard to Complainant’s allegation that he was subjected to harassment, we will assume arguendo that the alleged actions were unwanted. However, we find that there is a dispute as to whether the alleged actions by C1 were causally related to Complainant’s age and/or disability. In this regard, while Complainant alleged in claim 4(a) that C1 was verbally abusive and demeaning towards him, C1 stated that her actions could be open to interpretation, as Complainant could have viewed her repeated attempts to correct his mistakes to be hostile. ROI at 77-79. C1 explained that she never felt that her interactions with Complainant were hostile, and she emphasized that she never told Complainant to stop whining or “suck it up like a man.” Id. C1 also added that she never pushed Complainant beyond his physical limitations or denied him breaks and/or sustenance (claims 4(b) and (c)). Id. She explained that her email to Complainant asking him to not take smoke breaks, drink breaks, or lunch breaks, was poorly worded and reflective of the frustration she felt when during telephonic training, Complainant would step outside to smoke a cigarette, or go to the kitchen to make a sandwich. She noted that Complainant laughed hysterically when C1 asked Complainant what he was doing. Id. Having reviewed the record, we are unable to conclude that Complainant was ever subjected to a hostile work environment. In reaching this conclusion, we understand that Complainant disagrees with C1’s recollection of the alleged events; however, we note that Complainant did not request a hearing, where he could have cross-examined C1 to ascertain the veracity of her statements. Because we do not have the benefit of a credibility determination, we must take C1’s comments at face value. Based on our review of the record, we find that the interactions between C1 and Complainant amounted to a personality conflict, rather than discrimination. We remind Complainant that anti-discrimination statutes are not civility codes. Rather, they forbid “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). Complainant has not shown C1’s conduct had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment. Accordingly, we find that the conduct at issue was not sufficiently severe or pervasive enough to result in a hostile work environment. 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. 2020001633 8 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. 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). 2020001633 9 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 July 12, 2021 Date