[Redacted], Ralph B., 1 Complainant,v.Robin Carnahan, Administrator, General Services Administration, Agency.

Equal Employment Opportunity Commission

Oct 20, 2021

Appeal No. 2021000782 (E.E.O.C. Oct. 20, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ralph B.,1 Complainant, v. Robin Carnahan, Administrator, General Services Administration, Agency. Appeal No. 2021000782 Agency No. GSA-19-CO-Q-0155 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 4, 2020, 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., 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Transportation Operations Specialist, GS-12, at the Agency’s Federal Acquisition Service in Honolulu, Hawaii. On September 9, 2019, Complainant filed an EEO complaint alleging that the Agency subjected him to discriminatory harassment based on reprisal for prior protected EEO activity2 when: 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2 Complainant later amended the complaint to include Claim 7. Claim 7 originally listed religion (Christian), age (56), sex (male), race (Latino), national origin (Mexican), color (brown), disability (physical and mental), and reprisal for prior EEO activity as bases for discrimination. 2021000782 2 1. On May 20, 2019, Complainant was placed on leave restriction; 2. On May 29, 2019, Complainant’s request for 32 hours of advance annual leave was denied; 3. Since May 29, 2019, Complainant’s medical documentation was deemed administratively unacceptable, and Complainant was threatened with absence without leave (AWOL); 4. On June 14, 2019, and July 12, 2019, Complainant was directed to report to work on his telework days; 5. On June 19, 2019, Complainant was charged AWOL for May 31, 2019; 6. On August 2, 2019, Complainant was accused of not taking responsibility for his personal travel costs; and 7. On October 15, 2019, Complainant was suspended from November 5, 2019, through November 8, 2019. 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. 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). In its final decision, the Agency concluded that for Claims 1 through 6, Complainant failed to establish a prima facie case of retaliation. For Claims 1, 2, 3, 4, and 5, the Agency found that the events alleged were too remote in time from Complainant’s prior EEO activity-an informal complaint against his first-line supervisor (S1), Transportation Operations Officer, GS-13- which had occurred about six months earlier. The Agency therefore found that Complainant was unable “to create a causal nexus between the protected [EEO] activity and [the Agency’s] actions.” Similarly, for Claim 6, the Agency concluded that even though counseling had begun for the instant complaint prior to the events in Claim 6, S1 would not have been aware of it because S1 had not yet been informed of the complaint by the EEO counselor. Therefore, the Agency also concluded that Complainant could not establish a prima facie case for Claim 6. For Claim 7, the Agency conceded that Complainant was able to establish a prima facie case, but found that the Agency articulated a legitimate, nondiscriminatory reason for Complainant’s suspension. This reason was included in the Decision on Proposed Suspension, issued by Complainant’s third-level supervisor (S2), Zone 4 Fleet Manager, GS-15. As articulated in the Decision, Complainant was suspended because he “neglected [his] duty and exhibited a lack of candor” when he failed to initiate an order of a sports utility vehicle (SUV) for a customer and misled the customer by saying he had ordered it when he had not. In addition to the Decision letter, S2 stated in his affidavit that “Complainant had been reprimanded in the past” and that S2 took that into consideration when he issued the suspension. During the investigation, Complainant stated that the instant complaint, including Claim 7, was based on reprisal only and that the other bases were added in error. 2021000782 3 The Agency further determined that Complainant presented no evidence showing that the Agency’s reasons for the suspension were pretext for discrimination or reprisal. Finally, the Agency concluded that Complainant’s claims of harassment were precluded by its determination that “Complainant failed to establish that any of management’s actions were motived by . . . retaliation.” The instant appeal followed. In its brief, the Agency reiterates the same legal arguments on appeal that it made in its final decision. In addition, however, the Agency on appeal outlines the legitimate, nondiscriminatory reasons behind its actions. Based on its explanation and on our own review of the record, the Agency’s stated reasons for its actions are as follows. For Claim 1, S1 issued a leave restriction to Complainant because he had 15 unscheduled leave requests between January and May 2019, and he was low on leave balances for both sick and annual leave; this created a burden on Complainant’s coworkers. For Claim 2, S1 denied Complainant’s request for 32 hours (four days) of advanced annual leave because he would have sufficient leave by the relevant date if he did not use any leave in the interim. When S1 denied the request, Complainant was on leave restriction. For Claims 3 and 5, the reason S1 did not accept all medical documents that Complainant provided and ultimately charged him AWOL was because the documents were not specific as to the nature of his incapacity for duty, which was required based on the wording of the memorandum issued with his leave restriction. Complainant ultimately did provide sufficient documentation for another day of leave, but he did not provide documentation that specified the nature of his incapacity for his absence on May 31, 2019, which is why he was charged AWOL for four hours that day. For Claim 4, S1 called Complainant into work on two of his telework days. On June 14, 2019, S1 had Complainant report to work in order to conduct a meeting for his mid-year review. S1 had attempted to schedule this meeting multiple times in the prior weeks, but was unable to do so based on Complainant’s repeated requests for another employee to be present to witness the mid- year review meeting; S1 denied these requests. Ultimately, after several attempts at scheduling the meeting, S1 directed Complainant to come to work on June 14 for the mid-year review, which he agreed to do. However, Complainant requested that S1 conduct the meeting virtually, as she did with employees who work in the Alaska facility, but S1 denied that request because she preferred to have the meeting in person. The meeting occurred on June 14 in the office. On July 12, 2019, S1 had Complainant report to work on his telework day in order to “complete an important task” that Complainant had not fully completed the day before when it was due. This task involved disposing of old license plates by sending them to a facility. Complainant had not completed his list of license plates the prior day, so S1 requested he come to the office to finish the task. For Claim 6, Complainant had combined personal travel with a business trip, and so was responsible for some of the travel fees associated with the personal portion of the trip. 2021000782 4 There had been some confusion over how to remove his portion of the travel fees from the travel voucher S1 was to sign for reimbursement. After contacting several offices within the Agency, S1 and Complainant were able to solve the issue, and Complainant paid the fees incurred as part of his personal expenses and was reimbursed for the work-related portion of the travel. For Claim 7, the Agency articulated its reason in its Decision on Proposed Suspension, as described above. In his statement on appeal, Complainant disputes the Agency’s findings with regard to Claims 1, 2, 3, 4, 5, and 7.3 For Claim 1, he argues that his amount of leave was no more excessive than other employees who were not issued leave restrictions. For Claim 2, Complainant argues that the Agency’s findings contained factual errors regarding the dates of his request of advanced annual leave and S1’s denial. For Claims 3 and 5, Complainant argues that the documents he provided to support his sick leave were “bona fide medical letters” and that S1 should have accepted them. For Claim 4, Complainant points to what he characterizes as inconsistent answers provided by S1 in her affidavit and during the interview with the EEO counselor to show she is not telling the truth about why she called him into the office on July 12, 2019, on his telework day. He also denies any contention that there was a deficiency in his work that needed correcting for which he was required to come to the office. For Claim 7, Complainant argues that the Agency’s legitimate, nondiscriminatory reason is “based on false testimony.” He also contends that another employee was treated more favorably and had been given an opportunity to “correct his deficiency” by S1, whereas Complainant had not. Complainant argues that management mischaracterized his failure to order the SUV and that the customer did not incur any rental fees due to his error, despite S1’s conclusion in the proposed suspension letter that it had cost the customer $1,260.70. He also argues that the prior reprimand-which S2 considered in his decision to issue the suspension-was improperly issued by S1 at the time and so should not have been part of the decision. Complainant also mentions that his actions must not have been as egregious as S1 claimed, because she waited “three months after the fact to propose a suspension.” As for the Agency’s legal analysis, Complainant argues that the time between the alleged harassment and his prior activity was due to the time it took to gather “hard evidence” of harassment and that he thought the harassment might stop once S1 was named in his prior EEO informal complaint. With regard to the argument that he cannot show pretext for the decision to suspend him, Complainant argues that the reasoning behind the decision was not legitimate and based on lies from management, and that S1’s behavior was “highly suspect.” 3 Complainant does not dispute the Agency’s characterization of Claim 6. 2021000782 5 ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). In order to prevail in his claims of disparate treatment, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant 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 Construction 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, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). Moreover, to establish a prima facie case of reprisal Complainant must show that: (1) he engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). Here, assuming arguendo that Complainant established a prima facie case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Additionally, Complainant failed to show that these reasons were pretextual. Regarding Claim 1, the record indicates that the other employees Complainant named as similarly situated had significantly larger leave balances than Complainant did at the time he was placed on leave restriction. In addition, there is no evidence in the record, aside from Complainant’s assertions, that the other employees’ leave requests were all unplanned with no advance notice. Regarding Claim 2, the evidence shows that on May 16, 2019, Complainant requested 32 hours of advanced annual leave to be taken from July 29 to August 1, 2019. On May 29, 2019, S1 denied Complainant’s request for advance leave, telling him that if he did not use leave between May 29 and July 20, 2019, he would have enough leave to take the desired time off. 2021000782 6 While the sentence Complainant points to in the Agency’s final decision does incorrectly state that Complainant requested advance leave for May 29, 2019, the decision later correctly states S1’s reason for denial and indicates that the leave would be taken in July. Therefore, the mistake in dates Complainant points out on appeal were not relevant to the analysis in the Agency’s final decision and did not prejudice Complainant. Moreover, Complainant does not dispute the accuracy of S1’s argument that he would have accumulated enough leave between May and July to take the four days off. Regarding Claims 3 and 5, the record shows that the memorandum accompanying Complainant’s leave restriction states that he is “required to submit a medical certificate to substantiate all requests for sick leave, annual leave, or leave without pay (LWOP) for medical reasons, regardless of duration. The medical certificate must state the specific nature of [Complainant’s] incapacitation for the duties of [his] position, and the hours or dates covered. . . . Treatment verification slips which indicate only that [Complainant] presented [himself] for treatment will not satisfy this requirement.” The medical documentation that Complainant submitted for May 31, 2019, did not contain the nature of his incapacitation as required. There is evidence in the record of other documentation submitted by Complainant that did meet this requirement, but not for the date he was charged AWOL. Both S1 and S2 indicated to Complainant via email that the documentation he submitted for May 31, 2019, was insufficient and that he would be charged AWOL for four hours that day. Regarding Claim 4,4 a review of the record indicates that S1 ordered Complainant back to the office to complete the disposal of license plates that was meant to be done the day before. When Complainant came to the office, he completed the list, which included the disposal of six license plates. S1 admitted that she had originally thought there were more license plates left on Complainant’s list than six, but she had forgotten to filter out a certain portion of the list; S1 therefore apologized to Complainant for the miscalculation. Upon review, there are no meaningful discrepancies between the EEO counselor’s summary of the interview with S1 and S1’s affidavit submitted during the investigation. Even if there were discrepancies, however, S1’s interview with the EEO counselor did not contain sworn statements, and the report contains only the counselor’s summary of what S1 said. Any differences on which Complainant relies are insufficient to prove that the Agency’s reason was not legitimate. See Complainant v. Gen. Servs. Admin., EEOC Appeal No. 0120130973 (Apr. 22, 2015) (responding to complainant’s argument that “the Agency ignored the contradictory statements made by [supervisor] in her affidavit and in the EEO Counselor’s report” by concluding that “the EEO Counselor’s Report is not as persuasive evidence as an affidavit because it is not actual statements by the witnesses and . . . therefore, we do not examine the statements of witnesses which were summarized by the EEO Counselor in the EEO Counselor’s Report.”). Regarding Claim 7, Complainant argues that the prior discipline that S2 considered in his decision to suspend Complainant was not properly issued at the time. 4 Complainant does not make any arguments on appeal disputing the reason he was called into the office on June 14, 2019, namely, his mid-year review. 2021000782 7 However, this prior discipline is not at issue in the instant complaint, nor has it been found illegitimate previously. S1 and S2 could reasonably rely on Complainant’s prior disciplinary record in making their decisions regarding the suspension. Complainant’s argument that one of his coworkers made a similar mistake and faced no discipline is not supported by the record. The record indicates that the coworker worked diligently to immediately correct his oversight in ordering an ambulance for a customer, and that he notified the customer of the delay and received approval from the customer. These facts are markedly different than the behavior for which S1 and S2 disciplined Complainant, in which he failed to order the SUV and misled the customer by indicating he had already ordered it when he had not. Complainant’s argument that his customer did not incur any fees or costs due to his error is also not supported by record evidence beyond his bare assertion. Lastly, the three months between the conduct at issue and the proposed suspension issued by S1 does not indicate discriminatory animus. As the record makes clear, S1 was aware of Complainant’s prior EEO activity before the conduct for which he was suspended, meaning that any delay in issuing the proposed suspension cannot be attributed solely to retaliation. Moreover, S1 requested guidance from a Labor Relations Specialist before issuing the proposed suspension letter, which would have necessarily caused some delay between the conduct and the letter. The record contains no evidence that shows by a preponderance of the evidence that the reasons behind S1’s proposed suspension and S2’s decision issuing the suspension were retaliatory. Following a review of the record, we find that the evidence fails to demonstrate by a preponderance of the evidence that the above reasons were pretextual and that the Agency’s actions were rooted in impermissible discrimination. Complainant’s evidence falls short of linking management’s conduct to unallowable considerations of his protected status. We have consistently held that, absent discriminatory animus, the Commission will not second-guess an agency’s personnel decisions, and substitute our judgment for that of the Agency. Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997) citing Burdine, 450 U.S. at 259. Even if Complainant is challenging the finding of no discrimination regarding claim 6, we find no persuasive evidence of discrimination. Furthermore, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant’s claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION Upon careful review of the evidence of record, we conclude that the Agency correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency. Accordingly, we AFFIRM the Agency’s final decision finding no discrimination. 2021000782 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). 2021000782 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 October 20, 2021 Date