0120141526
08-19-2016
Rusty C.,1 Complainant, v. Edward Drusina, Commissioner, International Boundary & Water Commission, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Rusty C.,1
Complainant,
v.
Edward Drusina,
Commissioner,
International Boundary & Water Commission,
Agency.
Appeal No. 0120141526
Agency No. 11-02
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's February 5, 2014, 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 reasons stated below, we AFFIRM the Agency's final decision (FAD) which found that Complainant did not demonstrate that he was subjected to reprisal as alleged.
ISSUE PRESENTED
The issue presented in this case is whether the Agency erred in finding that Complainant was not subjected to reprisal when he was terminated from his position as a Laborer.
BACKGROUND
Complainant worked as a two-year term appointment Laborer, WG-3502-03 at the Agency's Lower Rio Grande Flood Control Project in Mercedes, Texas. Complainant's term appointment was not to exceed October 4, 2011. On January 7, 2011, Complainant's supervisor (Sl) issued Complainant a "Termination of Temporary Appointment" memorandum. Specifically, the memorandum cited the following reasons for Complainant's termination: (1) failure to follow proper procedures to request leave; (2) failure to provide requested medical documentation to a supervisor; (3) falsification of time cards; (4) inattention to duty; (5) recording of conversations in violation of Agency policy; and (6) discourtesy towards a co-worker. An SF-50 reflected that Sl requested the termination action and his second-line supervisor (S2) authorized the termination action.
On January 31, 2011 and February 23, 2011, Complainant filed formal complaints alleging that the Agency discriminated against him on the basis of reprisal2 for prior protected EEO activity (two prior EEO complaints filed in July and September 2010 when: (1) In late October and/or early November 2010, Sl failed to return phone calls to a prospective agency employer who had called to check his references;3 and (2) On January 7, 2011, Sl and S2 terminated his employment. Following an investigation by the Agency, Complainant requested a FAD. In that FAD, the Agency determined that Complainant did not establish that he was subjected to discrimination. The Complainant appealed the Agency's decision to the Commission.
In EEOC Appeal No. 0120114319, the Commission found that the record was insufficiently developed and ordered a supplemental investigation. We ordered the Agency to provide documentary and testimonial evidence to determine if the Agency's reasons for Complainant's termination were believable or if the Agency treated Complainant differently from similarly situated employees.
In the instant FAD, the Agency maintained that assuming arguendo that Complainant's prior protected EEO activity gave rise to an inference of retaliatory animus the Agency rebutted the inference by listing numerous legitimate, nonretaliatory reasons for Complainant's termination from his position. The Agency noted the six instances of misconduct cited above as justifications for Complainant's termination.
With regard to justification (1) and (2), the Agency explained that initially it granted Complainant's request to clean his injured finger at home but it was conditioned on Complainant's producing a medical order that stated he had to leave work in order to clean his injury. The only medical documentation that Complainant submitted expressly stated that he could clean the injury at work. Absent documentation that he was required to leave work to clean the injury, S1 informed Complainant that he would be charged sick leave for absences to clean his injury at home. Complainant, however, refused to take sick leave and instead claimed administrative leave, which he knew was not authorized. While Complainant maintained that he submitted medical documentation, the record is devoid of evidence substantiating this assertion. Complainant indicated that he had no need to dress his finger after November 12th.
With respect to justification (3) falsifying time cards, the Agency maintained that this claim is premised on time card entries on three occasions on November 15, 2010, December 6 and 15, 2010. The Agency maintains that on November 15, 2010, Complainant was paid for and signed a time card which reported ten hours of work. The Agency maintains that on several occasions Complainant left to attend to his finger and never returned or returned several hours after he left the facility. The Agency indicated that besides Complainant's work log and statements, there was no evidence corroborating that he ever reported to work on December 6th. Agency witnesses maintained that Complainant was seen but no one was sure what his job assignments were or who assigned Complainant to do work in the warehouse. The Agency maintained that Complainant's own records indicated that he was sometimes late. Nevertheless, the Agency argued that employees are supposed to confirm timecards before signing them. As such, the Agency found that based on the evidence in the administrative record and Complainant's inability to rebut said evidence that Complainant falsified his time cards and accepted payment from the Agency for periods of time he was not at work.
Further, with regard to justification (4), inattention to duty, Complainant maintained that he worked in the warehouse and on the computer on December 2 and 3. The Agency asserted however that on December 2 and 3, 2010, the warehouse was closed due to a mandatory meeting and S1 did not recall seeing Complainant on those days. The Agency found that based on the evidence provided in the record and Complainant's inability to provide any probative evidence to the contrary, the Agency found that Complainant was inattentive to his duties.
Regarding justification (5), impermissible recording of workplace conversations, the Agency maintained that Complainant violated a workplace policy by recording his conversation with the Agency's Ethics Officer. Complainant admitted to recording this conversation and other conversations but insisted that he was not aware of the Agency's policy. Complainant also argued that after he told the Ethics Officer that he was being recorded, he did not ask Complainant to stop so in essence he consented to be recorded. The Agency indicated that the Ethics Officer did not have the authority to waive Agency policy. The Agency found that Complainant violated Agency policy by impermissibly recording a workplace conversation.
With respect to justification (6), Complainant being discourteous to a coworker, the Agency explained that Complainant was discourteous to a coworker who was acting as crew chief on a project on December 21, 2010. The crew chief instructed Complainant to get inside the street railing for safety reasons as cars had to change lanes to avoid hitting Complainant. Complainant responded by saying either "buzz off" or "fuck off." Complainant maintained that he said "buzz off" and he admitted that he was upset with the crew chief because he had reported to S1 that Complainant had been late to work that day. The Agency found that Complainant's behavior constituted insubordination towards the crew chief and that the conduct put Complainant's safety and the safety of the general public at risk.
The Agency maintained that Complainant did not identify other similarly-situated employees that were treated more favorably as he was a term appointed federal employee. The Agency explained that term employees had far fewer protections than other federal employees and, accordingly, the Agency could terminate Complainant for any lawful reason. Moreover, the Agency indicated that Complainant did not identify any employee (term or not) who had committed acts of misconduct similar to his but were treated more favorably. The Agency maintained that Complainant's conduct was so egregious that his supervisors had not previously dealt with such behavior. Moreover, the Agency maintained that Complainant ignored the fact that certain Agency policies and protections did not apply to him as a term employee. The Agency maintained that Complainant did not demonstrate that the Agency's reasons for discharging him were not worthy of belief.
Finally, the Agency maintained that even assuming arguendo that Complainant provided evidence that disputed the Agency's evidence of his misconduct, or demonstrated the Agency had no underlying factual basis for its allegations of misconduct Complainant failed to prove that the Agency did not reasonably and in good faith believe that he had engaged in misconduct. Therefore, according to the Agency, if Complainant's supervisors reasonably and in good faith believed he engaged in the misconduct then the Agency's reasons were not pretextual.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that he was not allowed to interview all of the witnesses that he wanted to because many employees had retired and were no longer with the Agency. He also, maintains that the Agency initially listed six incidents of misconduct that led to his termination but during the appeal they added three more incidents and then conceded that there were only six reasons leading to his termination. Complainant asserts that the lack of consistency is evidence of pretext. Complainant asserts that the six instances of misconduct are false and that the record shows that the Agency administered more severe discipline to him than to the other employees. Complainant explains that after he injured his finger, S1 initially allowed him to go home to attend to his finger but at some point S1 changed his mind and wanted Complainant to take sick leave. Complainant maintains that he requested administrative leave instead of sick leave but it was denied. Complainant contends that it does not make sense that he would be fired for three hours of disputed leave.
Further, Complainant contends that the Agency itself admits that the time and attendance records were found to be unreliable and should be totally discounted and not used to prove or disprove anything as the Mercedes field office attendance records appeared to be in chaos. Additionally, Complainant maintains that management never spoke to him about his performance so the assertion about him not performing his duties was invalid. Complainant contends that the policy regarding the audio recording is incorrect as the manager had the ability to consent in their state. Complainant maintains that the Agency's arguments are not legitimate nondiscriminatory reasons and are pretext for retaliation.
Finally, Complainant contends that the Agency's argument that he did not have protection under the MSPB because he was a term employee was also without merit as he had EEO rights.
In response, the Agency, among other things, contends that its FAD should be affirmed as Complainant has not demonstrated that he was subjected to reprisal when he was terminated from his position.
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 (EEO MD-110), Ch. 9, � VI.A. (August 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
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473 (November 20, 1997), Complainant may establish a prima facie case of reprisal by showing 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. Department of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000). It is well-settled that a nexus may be shown by evidence that the adverse action followed the protected activity within such a period of time and in such a manner that a retaliatory motive is inferred. Simens v. Department of Justice, EEOC Request No. 05950113 (March 28, 1996) (citations omitted).
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to affirm the FAD. We find that assuming arguendo that Complainant established a prima facie case of reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions. We find that the Agency demonstrated with respect to justification (1), that while it initially approved Complainant's request to dress his wound at home, S1 changed his mind when documentation submitted by Complainant indicated that he could dress his wound at work. The record indicates that Complainant refused to accept this change and while he was told that he could continue to go home, if he took sick leave, Complainant refused to take sick leave and put administrative leave on his leave slips.
Further, with regard to justification (2), the record showed that Complainant was asked to provide medical documentation on several occasions and while Complainant maintained that he submitted said documentation, the medical documentation could not be located. The only medical documentation provided was the documentation that indicated that Complainant could address his wound at work.
With respect to justifications (3) and (4), we find that while the record indicates that the time card certification process was in disarray and no one appeared to be able to attest to the accuracy of the time cards, Complainant did not demonstrate that he actually worked the hours in question, nor did he establish that his prior EEO activity played a role in the Agency's determination that he falsified his time card. Further, with regard to justification (4), Complainant's inattention to duty, we find that the record is replete with affidavits that indicate that there were times when no one knew where Complainant was or what he was doing. We note that it was not Complainant's duty to assign himself work and that management may have been derelict in its duties for not directing Complainant but there is persuasive evidence in the record that Complainant was not where he was supposed to be on occasion and was not forthcoming in indicating where he was during these times.
We find that with respect to justification (5), the records show and Complainant admitted that he recorded the conversations of his coworkers, which was a violation of Agency policy. Finally, with regard to justification (6), the evidence demonstrated and Complainant admitted that he told the crew chief to "buzz off" when the crew chief was instructing Complainant on a matter of safety.
With regard to Complainant's contentions on appeal, we find that other than Complainant's conclusory statements, he has not provided any evidence which suggests that discriminatory animus was involved regarding his termination. While it is clear that he disagrees with the Agency's findings and thinks that the incidents were trivial or not worthy of action, he has not shown that the Agency's action was based on his prior EEO activity. Accordingly, we AFFIRM the Agency's FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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.
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
_8/19/16_________________
Date
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 also alleged discrimination on the bases of race and age, but withdrew those bases during the EEO investigation.
3 In the Agency's decisions 11-03, and 11-08 which pertain to the instant matter, the Agency determined that Complainant did not establish a prima facie case of reprisal because an adverse employment action did not occur. Specifically, the decision determined that the supervisor returned the prospective Agency employer's phone calls and provided a positive reference for Complainant. This issue was addressed in EEOC Appeal No. 0120114319 and therefore will not be discussed in this decision.
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