0120142487
12-15-2016
Timothy M.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Timothy M.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120142487
Agency No. 20DR-0005-2013100477
DECISION
Pursuant to 29 C.F.R. � 1614.403(a), Complainant filed an appeal from the Agency's May 22, 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 that follow, we AFFIRM the Agency's final decision.
BACKGROUND
From January 2011 to March 2012, Complainant, a GS-14 employee, was detailed to the Agency's Office of Information and Technology (OIT), Office of Enterprise Risk Management (OERM), Office of Risk Management Planning (ORMP), in Washington, DC. During this time, the Agency was creating ORMP as a new organization and Complainant worked as the Acting Director of ORMP. Complainant's first-level supervisor was the Executive Director of OERM (S2 - Caucasian, female, 47). In April 2012, Complainant was officially transferred to a GS-14 Management Analyst position in ORMP. Beginning in April 2012, Complainant's first-level supervisor was the GS-15 Acting Director of ORMP (S1 - African-American, male, 52) and Complainant's second-level supervisor was S2.
On February 14, 2013, Complainant filed an EEO complaint alleging that the Agency subjected him to hostile work environment harassment on the bases of race (African-American), sex (male), and age (55). Specifically, Complainant alleged that the harassment involved the following incidents:2
1. Incidents Involving His Detail as the Acting Director of ORMP
From January 2011 to March 2012, he was detailed to ORMP and worked as the Acting Director of ORMP. In April 2012, S2 replaced him with S1. Subsequently, he requested a SF-50 (Notification of Personnel Action) and GS-15 level pay for his time as the Acting Director of ORMP, but S2 denied his requests. He felt that S2 should not have replaced him, should have formally recognized his detail, and should have compensated him for his detail.
2. Incidents Involving His Performance Plan and Performance Appraisal
a. In October 2012, S1 prepared a performance plan for fiscal year (FY) 2012 and asked him to retroactively sign it. He refused to sign the performance plan. In November 2012, S1 prepared a performance appraisal for FY 2012 and gave him a rating of "Excellent." He refused to sign the performance appraisal. He felt that the "fabricated" plan, and subsequent appraisal based on the plan, was against Agency policy.
b. In November 2012, S1 did not respond to his email seeking clarification about the wording of his FY 2013 performance plan. His FY 2013 performance plan included the phrases "advanced level of Management leadership" and "advanced knowledge and skills of Risk Management programs." In his email to S1, he stated, "What is meant by 'advanced' and compared to what? Seems subjective." He felt that S1 put him in a "compromising" position with respect to his performance appraisal by not providing him with clarification.
3. Incidents Involving Training and Meetings
a. In July 2012, S1 initially selected him for the Risk University training in Denver, Colorado, but later selected a Caucasian male after discussing with S2. The Caucasian male and a Caucasian female attended the training. In August 2012, the two employees who attended the training were assigned to the working group to develop the risk registry. He felt that he should have been selected for the training because he was more senior and had already demonstrated himself in a leadership position. He felt that not being assigned to the working group was a direct result of being denied the training.
b. In January 2013, S1 did not provide him with the opportunity to attend an Association for Federal Enterprise Risk Management meeting in Washington, DC. S1 traveled from Albany, New York to attend the meeting. He felt that, if the meeting was important enough for S1 to travel to, S1 should have given him the opportunity to attend because he lived in the Washington, DC area.
4. Incidents Involving Work Assignments
a. In April 2012, at S2's direction, S1 removed him as the point of contact for a contractor that was hired to help set up ORMP. His replacement was a Caucasian female. He felt that S2 blamed him when she did not like the content of the deliverables from the contractor.
b. In November 2012, S1 did not assign him to refine documents from the contractor that would serve as ORPM's standard operating procedures. He felt that he was excluded from activities that were paramount to the success of ORPM even though he had helped lay the groundwork for ORPM.
c. In November 2012, S1 assigned him the task of supporting OIT's monthly performance review redesign activity. When he contacted the program manager of the project for more details, the program manager informed him that, for the last six months, the group had been trying to get S2 to participate and provide input. He felt that S1 was setting him up to fail because entering a situation where ORPM was "delinquent" in their participation and input was "a formula for disaster."
d. In December 2012, S1 did not provide him with "relevant and timely" information related to assessing risk assignments. S1 gave the team an assignment with a very short timeline. He felt that there were two unnamed employees on the team who had advance warning about the assignment because their work was almost done, yet other employees were subjected to a very short timeline because they were unaware that the assignment was coming. He felt that it was unfair for S1 to give some employees advance notice but not others.
e. From April 2012 to December 2012, S1 assigned him to tasks such as tracking VAIQ packages, generating independent estimates, and tracking the status of past events. He felt that the tasks were "remedial" because they required minimal leadership skills and were normally completed by GS-9 or GS-10 employees.
5. Other Incidents
a. In May 2012, S1 ultimately approved his request to be a virtual employee who worked remotely. He felt that management subjected him to "a more circuitous process" whereas they approved a similar request from a Caucasian female employee "without any hassle or fanfare."
b. In October 2012, when he experienced network connectivity problems, S1 told him to load the Citrix Access Gateway software onto his personal computer so he could access the Agency network. He felt that S1 singled him about because S1 did not tell other employees who had similar network connectivity problems to load the software.
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). In its decision, the Agency concluded that Complainant did not prove that it subjected him to harassment as alleged.
CONTENTIONS ON APPEAL
On appeal, among other things, Complainant argues that the Agency denied him fair and equitable opportunities for advancement. Specifically, Complainant asserts that the Agency treated him differently from similarly situated employees outside his protected classes by denying him a performance plan, training, and recognition for his detail.
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, at 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
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 generally Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Upon review of the record, we find that Complainant did not establish a claim of harassment. Specifically, the evidence in the record is insufficient to support a finding that the Agency's conduct was based on Complainant's race, sex, or age.
Regarding incidents 1, 2a, 3a-b, 4a-c, 4e, and 5a-b, we find that the Agency provided nondiscriminatory explanations for its conduct. As to incident 1, S2 averred that Complainant was never officially detailed to the position because ORPM was still being developed and formalized. As to incident 2a, S1 averred that he was trying to rectify a wrong because Complainant had not received a performance plan for FY 2012. In addition, S2 averred that she did not give Complainant a performance plan at the beginning of FY 2012 because he had another supervisor of record during his detail to ORPM and was not officially an ORPM employee until April 2012. As to incident 3a, S1 averred that, after discussing with S2, he decided the training would be a good opportunity for a new employee who had joined ORMP. As to incident 3b, S1 averred that he did not make it a point to tell his subordinates what training he was attending and why. As to incident 4a, S1 averred that the contractor's deliverables were substandard, so he thought someone with more experience as a technical proofreader could better manage the process of improving the documents. As to incident 4b, S1 averred that all ORMP employees played a role in reviewing the documents. As to incident 4c, S1 averred that he selected Complainant for the assignment because Complainant was a high-level employee who could "look across the organization." As to incident 4e, S1 averred that the tasks were not remedial and Complainant was given them because of his level of expertise and his ability as a GS-14 to deal with "high-level folks." As to incident 5a, S1 averred that he granted Complainant's request a month later after he checked "all the proper channels" and that other employees who had virtual status had been "grandfathered" into the new organization. As to incident 5b, S1 averred that there had been discussions for all virtual employees in ORMP, not just Complainant, to load the software. Regarding incidents 2b and 4d, assuming that they occurred as alleged, there is no indication that they were related to Complainant's protected classes.
Although Complainant argues on appeal that the Agency's conduct was discriminatory, we find that the totality of the evidence does not show that S1 or S2 was motivated by his race, sex, or age. As to the documentary evidence in the record, we find that it does not prove that the explanations provided by S1 and S2 are false. As to Complainant's testimonial evidence in the record, we note that much of it is contrary to the testimonial evidence provided by S1 and S2. Had Complainant requested a hearing before an Administrative Judge, the Administrative Judge could have made credibility determinations based on witness testimony. See generally EEO MD-110, at Ch. 7. 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. Based on the record before us, we are not persuaded that Complainant has shown that the conduct of S1 or S2 was based on his race, sex, or age.
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 finding no hostile work environment harassment on the bases of race, sex, or age.
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
_12/15/16_________________
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 For purposes of clarity, we have renumbered and rephrased the incidents based on Complainant's affidavit testimony and the documentary evidence in the record.
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