[Redacted], Merle S., 1 Complainant,v.Deb Haaland, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity Commission

May 24, 2021

Appeal No. 2020000508 (E.E.O.C. May. 24, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Merle S.,1 Complainant, v. Deb Haaland, Secretary, Department of the Interior, Agency. Appeal No. 2020000508 Agency No. DOIBLM180613 DECISION On September 16, 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 13, 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. ISSUE PRESENTED Whether the Final Agency Decision (FAD) correctly determined that Complainant was not subjected to discriminatory harassment based on race (American Indian/Alaska Native), sex (male, sexual orientation/gay), age (58), and reprisal for prior protected EEO activity from April 2018 through July 26, 2018. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Resource Management Specialist, GS-12, at the Agency’s Bureau of Land Management (BLM) in Palm Springs (PS), California. 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. 2020000508 2 On October 26, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (American Indian/Alaska Native), sex (male, sexual orientation/gay), age (58), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 when Complainant’s supervisors (S1, S2, and S3): 1. interfered with Complainant’s telework; 2. denied Complainant’s request for leave under the Family Medical Leave Act (FMLA); and 3. required Complainant to report to the Palm Springs - South Coast (PS-SC) Field Office. The record evidence indicated that Complainant initiated EEO contact for the instant complaint on September 5, 2018. The record also indicated that Complainant filed an EEO-related lawsuit in Federal District Court on April 8, 2013 and that Complainant’s spouse filed an EEO complaint against the Agency in May 2018. Complainant stated that his supervisors probably became aware of his prior EEO activity when they were "briefed" about Complainant upon starting in their positions. Complainant also stated that his spouse’s May 2018 EEO complaint named S2 and S3 as the Responsible Management Officials (RMOs). The RMOs all acknowledged awareness of Complainant's race, sex, sexual orientation, and age but denied awareness of Complainant’s prior EEO activity. Claim 1 Complainant explained that he had a previous telework agreement in place with the District Office that he and S1 worked under since May 31, 2015. Complainant stated that, under that agreement, he could telework from home or the California Desert District Office in Moreno Valley depending on the assignment. Complainant stated that he was discriminated against when his telework agreement mysteriously disappeared from District Office files under the oversight and supervision of S2 and S3. Complainant asserted that S1 contacted him on April 2, 2018, to inform Complainant that he did not have a valid telework agreement on record, and that they needed to complete a new agreement. Complainant did not indicate that his telework agreement was cancelled. S1 stated that she informed Complainant that they needed to develop an updated telework agreement on April 12, 2018, because based on information S1 received from upper management, Complainant did not have a valid telework agreement on record; and that she, as Complainant's new supervisor, needed to keep complete and accurate, up-to-date records. S2 provided supporting testimony, adding that due to a national data call, he became aware that a number of employees in the California Desert District had been teleworking routinely without current and approved telework agreements. 2020000508 3 S2 stated that, as a result, he directed all of his subordinate supervisors to ensure that all teleworking employees had current and approved telework agreements in place. Neither S1 nor S2 indicated that Complainant was denied telework privileges. S1 and S2 asserted that the telework agreement issue was not related to Complainant's protected classes; and S3 denied involvement in the telework agreement issue. All the RMOs indicated that they did not act against Complainant based on discriminatory motives as alleged. Claim 2 Complainant stated that he made a verbal request for leave under FMLA to S1 on May 17, 2018. Complainant explained that he informed S1 that he was going to need extensive time off and asked her how she wanted him to request the necessary leave. Complainant stated that he and S1 discussed FMLA leave. Complainant stated that on July 26, 2018, he submitted a written Request for Leave or Approved Absence to S1, indicating that S1 denied the request. Complainant also alleged that S1 informed Complainant that he could telework three days per week but that Complainant must be in the office two days per week; and that Complainant must attend bi-monthly meetings in person. Complainant stated that, on September 28, 2019, S1 informed Complainant via email that he could code FMLA in Quicktime. Complainant stated that he submitted his second FMLA request on October 16, 2018, almost three months after his July 26 request. Complainant asserted that S1’s actions were due to her discriminatory motives against him based on his protected classes. S1 stated that she did not deny Complainant's July 26, 2018 FMLA request. Rather, S1 asserted, when Complainant handed in the hard copy request, S1 informed Complainant that the requests were being submitted electronically; and that Complainant would have to input the information into the appropriate electronic forms. S1 stated that the Agency did not twice deny Complainant's FMLA requests. S1 asserted that she contacted Human Resources (HR) for the correct paperwork and she gave that paperwork to Complainant to complete with his spouse’s doctor. S1 reiterated that nobody ever denied Complainant's leave, affirming that she told Complainant he could code his time as FMLA in Quicktime, but he did not want to do it that way so S1 and Complainant "did it through the old system where S1 sent the paperwork to Complainant and Complainant signed and sent it back to S1; and then S1 forwarded the paperwork to HR." S1 asserted that she did not inform Complainant that he must be in the office two days per week if Complainant was on FMLA leave. S1 stated that, rather, she informed Complainant that when he returned to work and was not on FMLA leave, Complainant was required to be in the office two days per week in accordance with Complainant’s telework agreement. 2020000508 4 In rebuttal, Complainant later asserted that when he brought the FMLA forms to S1, she told him that they were the wrong forms and threw them in the trash. Complainant stated that S1 then provided the "correct" forms to Complainant, but Complainant alleged that they were identical to those that were thrown away. Complainant asserted that there was no reason that Complainant’s original FMLA request could not have been approved. Therefore, he asserted, the Agency’s explanations were pretext for discrimination. Claim 3 Complainant alleged that he was notified by S1 on April 3, 2018, that Complainant was required to report to the PS-SC Field Office as Complainant’s full-time duty station. Complainant alleged that S1 acted at the direction of S2, asserting that Complainant was singled out, harassed, and forcibly removed from his official duty station at Moreno Valley due to S2’s discriminatory motives against Complainant based on Complainant’s protected classes. Complainant alleged that he was forced to drive/report to the PS-SC Field Office when his official duty station was the California Desert District Office. Complainant stated that S2 and S3 accommodated a non-gay married Caucasian couple (C1 and C2) and another employee (C3) while Complainant and his spouse were forced to drive long distances. Complainant alleged that S2 drafted a “letter of wrong-doing” for Complainant, but a fourth supervisor (S4) and S1 refused to issue the letter to him. Complainant asserted that his supervisors took the actions alleged in the instant complaint to create a hostile work environment for him due to their discriminatory motives based on his protected classes. S1 stated that she determined, in conjunction with S2, that Complainant should report full-time to the duty station in Palm Springs because the bulk of the work Complainant was assigned to complete took place in Palm Springs. S1 asserted that Complainant was permitted to telework but was required to attend some meetings in person. S1 stated that the meetings Complainant was required to attend in person took place at the PS-SC location. S1 asserted that the issue was related to a sound business decision and not due to discriminatory motives against Complainant. S1 indicated that she did not know about C1, C2, and C3. S1 however identified another married couple (C4 and C5), stating that C4 went to the District office every day and drove to PS in a government vehicle. S1 added that C4 and C5 were part of the reorganization 2013, where certain employees were needed out in the field offices. S2 provided supporting testimony, stating that he was concerned, after discussing Complainant's schedule with S1, that S1 was not as aware of Complainant's day-to-day activities as she should be as his new first-level supervisor. S1 asserted that he and S1 agreed that Complainant should report to the PS-SC location where S1 was located when Complainant was required to report to the office. S2 stated that the duty stations of C1, C2, and C3 were established prior to S2’s arrival in the district; and that S2 had had no involvement in determinations regarding the comparators’ duty stations. 2020000508 5 S2 added that C1 was a State Office employee not within S2’s purview as the Associate District Manager; that C2 was a District Office employee who reported to work regularly at the District Office in Moreno Valley; and that C3 was a Needles Field Office employee who also reported to work regularly at the District Office in Moreno Valley. S2 also explained that the letter to which Complainant referred was drafted in agreement with HR in connection with resolving issues concerning Complainant’s performance, and Complainant’s new supervisor, S1, not always knowing Complainant’s whereabouts. S2 asserted that the letter was never issued to Complainant. S3 denied involvement in Complainant's work location issue, asserting that she did not hold or act on discriminatory motives against Complainant as alleged. 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency indicated that Claims 1 and 3 were not analyzed under the disparate treatment theory of discrimination because they were not timely-raised discrete acts. As such, Claims 1 and 3 were used as background evidence regarding Complainant's harassment claim. The Agency concluded that Complainant failed to prove that the Agency subjected him to disparate treatment with respect to Claim 2 or harassment as alleged in Claims 1, 2, and 3. CONTENTIONS ON APPEAL In his Appeal Brief, among other things, Complainant reiterates his allegations. Complainant asserts that despite ultimately being approved, his FMLA leave request was delayed three months, stating that the Agency's explanation of the process he went through to apply for FMLA is inaccurate. Complainant requests that the Commission find in his favor and award him compensatory damages, his reasonable attorneys' fees, and any other award the Commission deems just and necessary. In its Appeal Brief, the Agency asserts that it properly considered the record as set forth in the investigation, reiterating that it did not discriminate against Complainant and determined that it properly entered findings of no discrimination based on Complainant’s protected classes. The Agency requests that the Commission deny Complainant's appeal and affirm the FAD. 2020000508 6 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 Disparate Treatment - Claim 2 To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. 802 at n. 13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, a 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 Ctr v. Hicks, 509 U.S. 502, 519 (1993). Assuming, arguendo, that Complainant established a prima facie case of discrimination and hostile work environment based on reprisal; we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. We also find no persuasive evidence of pretext. Regarding Claim 2, S1 asserted that she did not deny Complainant’s FMLA request, indicating that she advised Complainant to electronically submit his request and to code his time and attendance in Quicktime as FMLA. S1 also stated that she and Complainant did complete Complainant’s FMLA paperwork “the old way." Complainant contested S1’s statements, indicating that the new forms S1 gave to him (which were eventually approved in hard copy), were identical to the forms Complainant had completed, and which S1 had thrown in the trash. Complainant also contested the approval process described by S1, asserting that his leave request was delayed for three months; and stating that management’s explanations were a pretext for discrimination. 2020000508 7 However, the record is devoid of any supporting evidence for Complainant’s allegations that S1’s actions were motivated by discriminatory or retaliatory animus based on membership in Complainant’s protected classes. Moreover, even if Complainant’s contentions are true, S1’s trashing of the hard copy forms (which may have resulted in any delayed approval) does not establish discriminatory animus if Complainant submitted a hard copy request when he should have made his request electronically. Besides, the delay could also be attributed to the fact that Complainant did not resubmit his second FMLA request until almost three months after his July 26 initial submission. S1 also did eventually approve Complainant’s hard copy leave request. Therefore, Complainant’s FMLA leave request was not denied as alleged. Importantly, Complainant did not provide examples of any comments made by S1; and he did not attribute any inappropriate comments or actions to any management officials that were based on his protected classes. The Commission has stated that proof of pretext includes discriminatory statements or past personal treatment attributable to the named managers, unequal application of agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. See January B. v. Dep’t of the Navy, EEOC Appeal No. 0120142872 (Dec. 18, 2015) (Citing Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015).) We do not find such proof in the instant complaint. Therefore, Complainant’s disparate treatment allegations fail and he does not prevail. Harassment - Claims 1, 2, and 3 Complainant has alleged harassment when management allegedly interfered with his telework; denied his FMLA request; and, required him to report to the PS-SC Field Office. To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their 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). 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). Complainant met the first two elements of his prima facie harassment allegations. Complainant however failed to meet the remaining three elements because he did not demonstrate that he was subjected to any conduct that meets the level of severity or pervasiveness to support a claim of actionable harassment as shown below. 2020000508 8 Regarding Claim 2, as found above, we determined that Complainant failed to show that the he was denied his FMLA request due to his protected bases. Complainant's claim of harassment is precluded based on our findings that he failed to establish that the events in claim 2 were motivated by his protected bases. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Regarding Claim 1, Complainant’s allegation is that management interfered with his telework agreement. Both S1 and S2 provided explanations indicating that like a number of other employees, Complainant’s telework agreement needed to be updated so that management would have current records. Regarding Claim 3, Complainant alleged that management required him to report to the PS-SC Field Office, identifying coworkers who, Complainant asserted, received more favorable treatment. However, both S1 and S2 provided explanations indicating that Complainant was required to report to the office where S1 was located which was the same location where Complainant was required to attend in-person meetings when Complainant was not teleworking. This would afford S1, his new supervisor, awareness of Complainant's day-to- day activities as she should be. S1 and S2 also stated that other employees outside of Complainant’s protected classes had to regularly report to the PS office. We find that all of the alleged management conduct as described by Complainant are common workplace occurrences, routine work assignments, or instructions that do not rise to the level of discriminatory harassment. See DiFruscio v. Soc. Sec. Admin., EEOC Appeal No. 01982006 (Sept. 13, 2000); Wolf v. U.S. Postal Serv., EEOC Appeal No. 01961559 (Jul. 23, 1998); and Bennett v. Dep’t of the Navy, EEOC Request No. 05980746 (Sept. 19, 2000). See also, e.g., Zada C. v. U.S. Postal Serv., EEOC Appeal No. 0120161460 (May 29, 2018) (stating that common workplace occurrences require evidence of abuse or offensiveness). The record in the instant complaint is devoid of any comments or references to Complainant’s protected classes that would demonstrate that the alleged management actions were based on Complainant’s membership in those classes. Neither is there evidence of discriminatory or retaliatory animus. We therefore find that while Complainant has failed to sustain his harassment allegations. Therefore, the Commission is not able to grant Complainant’s requested relief. 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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the complainant or the agency submits a written request that contains arguments or evidence that tend to establish that: 2020000508 9 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, 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. 2020000508 10 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 May 24, 2021 Date