0120160998
07-20-2018
Sammy R.,1 Complainant, v. Wilbur L. Ross, Jr., Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sammy R.,1
Complainant,
v.
Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce
(National Oceanic & Atmospheric Administration),
Agency.
Appeal No. 0120160998
Agency No. 54-2015-00102
DECISION
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 2, 2015, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Criminal Investigator (Special Agent) at the Agency's Miami Field Office, Southeast Division facility in Miami, Florida. Complainant began working as an agent in the Miami Field Office in April 2009. Upon arrival, he advised his co-workers that he did not eat red meat and pork because of his Rastafarian religious beliefs. According to Complainant, all his co-workers, except one (C-1), accepted his eating habits. C-1 made jokes about Complainant's refusal to eat read meat and pork.
On January 13, 2011, while Complainant was meeting with S-1 (his Supervisor), C-1 interrupted the conversation to inform him that B-2, an Assistant United States Attorney (AUSA) who also was Jamaican, told him that he ate red meat. When Complainant tried to explain that B-2 came from a different part of the Jamaican culture, C-1 interrupted Complainant and shouted, "It's a cult." Complainant filed a complaint with the DOC Workforce Management Office on April 15, 2011, and, on June 16, 2011, received a response from the Acting Director. Complainant believed that these events were the origin of S-1's retaliatory animus towards him.
S-1 stated he has supervised Complainant as both a first and second line supervisor since around 2009. S-1 states that he learned about Complainant's Rastafarian religion about three years ago when he recalled C-1 asking Complainant about his religion and then asking if it was a cult.
On March 31, 2015, Complainant filed an EEO complaint alleging that he was discriminated against based on religion (not specified), race (African-American) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. His supervisor, S-1, Assistant Special Agent in Charge, subjected him to discrimination with respect to his work assignments, including denying him cases and removing him from cases;
2. On April 2, 2015, S-1 issued him a Letter of Counseling;
3. S-1 applied a higher standard to evaluate his case entries into the database and tried to make the work that he has done in the database appear as though he was "lacking in work effort," and changed the standards without first notifying him and "then attacking [him] for not adhering to the new standards;"
4. S-1 become tired of him "defending [him]self" against S-1's claims via e� mail and claimed that he (Complainant) was "creating a hostile work environment;" and
5. S-1 gave him a poor rating during his mid-term review.
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. In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. This appeal followed.
CONTENTIONS ON APPEAL
Complainant submits no additional contentions on 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
Disparate Treatment and Reprisal
Complainant must satisfy a three-part evidentiary scheme to prevail on claims of disparate treatment and reprisal. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Second, the burden is on 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). Third, should the Agency carry its burden. Complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Agency were not its true reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Assuming, arguendo, that Complainant established a prima facie case of discrimination based on religion, race and reprisal for prior protected EEO activity, the Agency provided the Agency provided legitimate, non-discriminatory reasons for its actions.
With regard to Claim 1, S-1 stated, in pertinent part, that the reason he removed Complainant from a criminal case was because it appeared to be developing into a significant investigation, yet Complainant refused to provide him with any information on the investigation and refused to include him on the phone call with the Analytical Team. S-1 reassigned the case to C-2 and told him to include Complainant and to keep him involved as a learning experience.
With regard to Claim 2, when S-1 reviewed Complainant's LEADS input in February 2015, he realized Complainant had the most cases that needed updating with the oldest not having an update since July 2014. When he advised Complainant to update his cases, Complainant got upset with him. He performed another review in March 2015 and saw Complainant had not taken any action to update his cases as requested the previous month. As a result, S-1 stated that he worked with HR to develop a Letter of Counseling, which he issued to Complainant on April 2, 2015. S-1 stated he did not issue Complainant the Letter of Counseling in retaliation for his EEO activity.
With regard to Claim 3, S-1 stated that he did not change his standards upon his November 2014 return to his regular ASAC position. He expected agents, no matter if they were Band III or Band IV, to keep their supervisor informed of their activities, which is also an agent safety issue. According to S-1, except for Complainant, he does not have any problems with agents keeping him informed of their whereabouts. S-1 stated that he receives absolutely no communication from Complainant, and that Complainant refuses to speak with him. Because Complainant refuses to speak with him, S-1 has to send emails with his supervisory instructions.
With regard to Claim 4, S-1 stated that he sent Complainant a June 10, 2015 email. Prior to the email, S-1 stated that communication was again lacking from Complainant. He noted that during this time, there was an incident opened on January 2, 2015, and as of June 10, 2015, Complainant had not provided any updates except, "still working." S-1 stated that he e-mailed Complainant with tasks and a deadline for completing the incident. Complainant responded by stating the pace of his work was significantly affected because of the actions S-1 took against him.
S-1 stated that he realized Complainant may be afforded official government time to prepare his EEO case; however, Complainant never told him how much time he needed and as a result he never knew what Complainant was working on. S-1 worked with HR to draft the response that Complainant's work should not be impacted because of his EEO case and Complainant should talk to him if they must shift his workload to accommodate him with sufficient time to address his EEO complaint.
S-1 stated that Complainant responded by stating that he was forwarding the e-mail thread to the Department's Office of Civil Rights (OCR). He stated that he responded back to Complainant, after coordinating with Human Resources, and that as a supervisor, he is responsible for ensuring that work is completed within specified timeframes and to provide feedback, guidance, and other instructions as well as the need to communicate with Complainant. He stated that Complainant again responded that he was referring the emails to OCR.
S-1 stated that on June 18, 2015, Complainant sent him an email requesting permission to contact A-3, a high-ranking Agency official, regarding a promotion package because Complainant could not trust him. S-1 stated that due to the problems he faced when dealing with Complainant, he worked with HR to draft an e-mail response stating that Complainant could ask questions and he would answer them honestly and as accurately as possible and gave him permission to contact A-3. S-1 stated that he advised Complainant that his continued accusations were unnecessary, unprofessional, offensive, and would not be tolerated further. According to S-1, he told Complainant he could file whatever complaint he wished if he perceived S-1 was discriminating against him, but he would not tolerate Complainant's constant accusations against him, and that Complainant's emails had become hostile and damaged his ability to effectively supervise and communicate with Complainant.
With regard to Claim 5, S-1 stated that for Complainant's 2015 mid-cycle progress review, he identified two "Deficiencies, Areas of Concern" to include failure to keep him informed of plans, activities, results that were addressed in the April 2, 2015 Letter of Counseling, and timeliness with Complainant's case work in LEADS allowing 15 LEADS items to be overdue. In addition, during the mid-cycle review, he provided suggestions/strategies for improvement by recommending Complainant submit weekly reports, which are seen by the ASAC, Division, and Headquarters. However, S-1 stated Complainant has yet to provide a single weekly report to him. He also suggested Complainant schedule one day a week to update and manage his LEADS activity. S-1 stated that he was met with immediate resistance by Complainant when he attempted to provide feedback for the mid-cycle performance review. S-1 stated he noted no deficiencies for any other employee during the 2015 mid-cycle progress review.
Upon review of the record, we find that Complainant has not established, by a preponderance of the evidence, that the explanations provided by the Agency were pretext for discrimination based on Complainant's protected categories. In fact, the evidence provided suggests that Complainant's relationship with his supervisor was contentious based on performance concerns and Complainant's reaction to his supervisor's comments about his job performance. He has not provided persuasive evidence that his treatment was related to his race, religion or previous EEO activity. As Complainant did not request a hearing, we do not have the benefit of an Administrative Judge's credibility determinations after a hearing; therefore, we can only evaluate the facts based on the weight of the evidence presented to us.
CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
____7/20/18______________
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
0120160998
3
0120160998