0120142635
09-15-2016
Victor S.,1 Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Victor S.,1
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120142635
Hearing No. 461-2012-00133X
Agency No. OCFO201200101
OCFO201100688
DECISION
On July 11, 2014, Complainant filed an appeal from the Agency's November 18, 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.2 For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
Whether the Equal Employment Opportunity Commission Administrative Judge (AJ) abused his discretion in dismissing Complainant's hearing request as a sanction, and ordering the Agency to issue a final decision. Whether the Agency discriminated against, and subjected Complainant to harassment, on the bases of reprisal for prior EEO activity when his supervisor allegedly did not provide him with training; did not issue him a laptop or cellphone; assigned him tasks that he was not trained for; called his work bad; threatened to write him up; discouraged his coworkers from communicating with him; threatened to charge him with absence without leave (AWOL); issued him a reprimand; discouraged him from filing a complaint; and issued him a counseling letter.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Information Technology (IT) Specialist at the Agency's National Finance Center in New Orleans, Louisiana. On November 2, 2009, Complainant was removed from the Agency, but was reinstated pursuant to a settlement agreement. When Complainant returned to the Agency in June 2010, he reported to a different first line supervisor (S1) (prior EEO activity), in a different position.
Complainant applied for an internal position as an IT Specialist. On December 23, 2010, Complainant learned that he was not eligible for the position because he did not possess the specialized experience for the position. Complainant did not know who was selected, but believed that no one was hired from this vacancy announcement.
On an unspecified date, Complainant stated that S1 informed him that he may need to take contracting officer's technical representative (COTR) training for his new position. Complainant alleged that he was not informed of the COTR training until after it passed. Complainant also stated that he informed S1 that he was on-call, and requested a laptop and cellphone. He stated that S1 initially requested these items for him, but later told him that he would not need them. Complainant alleged that S1 instructed Complainant to come into the office to work. In April 2011, Complainant and S1 met to discuss his mid-year performance; Complainant alleged that S1 stated that his performance was unacceptable.
On May 11, 2011, Complainant approached a coworker (C1) (no prior EEO activity), and stated that his reading glasses were disappearing. When Complainant asked if C1 was taking his glasses, she responded that she did not take his glasses. C1 reported the incident to S1, and expressed concern that Complainant had accused her of stealing. On June 13, 2011, S1 issued Complainant a Counseling Letter for the incident, stating that this was not appropriate behavior.
On July 1, 2011, S1 saw that Complainant's time and attendance only showed 75 hours for the biweek. She called and sent multiple emails to inform him that he needed to update it, or she would have to record five hours of AWOL. Complainant amended his time records, and was not charged with AWOL.
On September 22, 2011, C1 noticed that money was missing from her wallet. She stated aloud that she would have to ask to check the security camera footage. Complainant approached C1, and asked if she was talking to him; she replied that she was not. Complainant stated that he was the only one in the vicinity, so she had to have been talking to him. C1 responded that she was talking to herself. Both C1 and Complainant reported the incident, and S1 instructed them to keep their distance from each other. On October 27, 2011, S1 issued Complainant a Letter of Reprimand for the incident.
On September 30, 2011, Complainant showed S1 an email printout, and jokingly asked if he could "keep the money." S1 saw that the email was spam, and informed Complainant that the Agency had strict security policies regarding opening bogus emails. S1 stated that she informed him that he needed to confirm that he understood the policies and procedures.
On May 25, 2011, Complainant initiated EEO counseling alleging that the Agency discriminated against, and subjected him to a hostile work environment on the basis of reprisal for filing five prior EEO cases.3 Complainant filed another EEO complainant, and the two cases were consolidated. The following claims were accepted for investigation:
1. On an unspecified date, he was not selected for the GS-2210-12, IT Specialist Position, advertised under Vacancy Announcement Number 406397;
2. On unspecified dates, he was not provided formal COTR training;
3. he was not provided a laptop and cell phone, making him unable to work from home and forcing him to report to the workplace for after-hours calls;
4. he was assigned tasks for which he did not have the training or knowledge to successfully complete, which S1 would later remove from him in order to "back" him into a demotion;
5. S1 frequently stated that his work was bad, and that she wanted to see him fail, and would be the "first in line" to accuse him of failing;
6. he was constantly advised that S1 was "writing him up" for various work deficiencies to be presented at performance review time, but he did not receive any such write-ups or an opportunity to dispute them;
7. S1 discouraged his coworkers from communicating with him, and excused them from that performance element requirement;
8. S1 attempted to charge him with AWOL for an unbalanced time and attendance report;
9. on October 27, 2012, he was issued a Letter of Reprimand after an incident with C1, and was not provided the opportunity to respond to the statements set forth therein;
10. on an unspecified date, S1 discouraged him from filing a complaint or contacting Human Resources (HR) concerning the incident with C1 and then, as a threat, showed him extensive documentation to demonstrate how he had failed to meet his performance standard; and
11. on an unspecified date, S1 issued him a Letter of Counseling, after a prior incident involving him and C1, and gave him specific instructions as to how he should no longer speak to her, even though such separation impeded his ability to perform his job duties.
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 Administrative Judge, and Complainant requested a hearing. On June 14, 2014, the AJ issued a Sanction Notice and Order to Complainant directing him to show cause as to why he should not be sanctioned for not filing his pre-hearing report by the deadline provided in the AJ's May 15, 2014, Scheduling Notice and Order. Complainant responded on June 23, 2014, stating that he first became aware that his case was active when the Agency notified him that a pre-hearing call had been scheduled.
The AJ determined that if Complainant was unaware that his case was active, it was because he chose to be unaware. The AJ stated that his orders were emailed to Complainant, and that he and Complainant had exchanged emails in the past, using the same email address for Complainant. The AJ noted that Complainant did not assert that he never received the emails, only that he was unaware; and that he was responsible for checking his emails. The AJ found that Complainant's conduct prejudiced the Agency; delayed the processing of the case; and burdened the Commission with additional tasks. As a sanction, the AJ dismissed Complainant's hearing request, and remanded the complaint to the Agency to 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.
As an initial matter, the Agency dismissed claim 1 for untimely contact with an EEO Counselor. Complainant learned that he was not selected for the position on December 23, 2010, and did not contact the EEO office until approximately five months later, on May 25, 2011. The Agency noted that Complainant had sufficient information to be reasonably suspicious that he was discriminated against because he considered himself to be "uniquely qualified" for the position, and his attempts to obtain an explanation for why he was not considered qualified were ignored.
The Agency then found that Complainant had not established a prima facie case of reprisal discrimination because he had not shown a causal link between his prior EEO activity and his current claims. The Agency found that there was no evidence to conclude that the management officials acted in an effort to deter Complainant, or any other employee, from engaging in protected activity. The Agency also found that Complainant had not shown that the Agency subjected him to a hostile work environment because the record was devoid of any evidence showing that management officials harassed Complainant because of his prior EEO activity. The Agency also noted that a reasonable person would not find the conditions that Complainant complained of as being abusive or hostile.
Complainant filed the instant appeal, and submitted a brief in support of his appeal. The Agency did not file a response.
CONTENTIONS ON APPEAL
Among other things, Complainant argues that the AJ should not have dismissed his hearing request. Specifically, Complainant alleges that:
1. his hearing was not scheduled in the prescribed time frames;
2. the AJ did not provide him with any time frame for "reactivation" of his case;
3. the four requirements for dismissal were not met;
4. the AJ and the Agency did not attend the pre-hearing conference;
5. the Agency failed to show that another date had been set for the pre-hearing conference, and the AJ failed to recognize the error; and
6. the Agency did not claim to have been harmed.
Complainant also alleges that the Agency breached the settlement agreement.
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
As an initial matter, we note that the Agency's decision does not address Complainant's allegation of a settlement breach. EEOC Regulation 29 C.F.R. � 1614.504(a) provides that if a complainant believes that an agency has failed to comply with the terms of a settlement agreement, the complainant shall notify the agency's EEO Director, in writing, of the alleged noncompliance within 30 days of when the complainant knew, or should have known, of the alleged breach. In this case, the record does not show that Complainant raised the matter with the Agency. As such, this decision will not address the matter because the Commission cannot address an issue raised for the first time on appeal.
Hearing Dismissal
The Commission notes that AJ's have broad discretion in the conduct of hearings, including ordering parties to provide documents by a certain deadline, and issuing sanctions for non-compliance. See 29 C.F.R. � 109. In this case, we find that the AJ properly dismissed Complainant's hearing request. In the May 15, 2014 order, the AJ instructed the parties to submit their pre-hearing reports by June 11, 2014, in advance of the pre-hearing conference scheduled for June 18, 2014. The Agency submitted its report on June 10, 2014, and Complainant did not submit his report until July 1, 2014. When the AJ did not receive the Complainant's pre-hearing report by the deadline, he sent Complainant the sanction notice to give him an opportunity to explain why he did not submit his report. After receiving Complainant's response, the AJ decided that Complainant had not provided a legitimate reason to excuse his non-compliance. As such, the AJ dismissed Complainant's hearing request as a sanction, and remanded the complaint back to the Agency for issuance of a final decision. We find that Complainant has not shown that the AJ abused his discretion, and accordingly, concur with the AJ's dismissal of Complainant's hearing request.
Dismissal of Claim 1
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the EEO Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered See Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent.
EEOC regulations provide that the Agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. Ellis v. United States Postal Service, EEOC Request No. 01992093 (Nov. 29, 2000). In this case, Complainant did not contact an EEO Counselor until well past the 45-day deadline, after learning of his non-selection. We find that he has not shown that the time limit should be waived, and as such, we AFFIRM the Agency's dismissal of this claim for untimely EEO contact.
Disparate Treatment
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Assuming, arguendo, that Complainant had established a prima facie case of reprisal discrimination, we find that the Agency articulated legitimate, non-discriminatory reasons for its actions. For claim 2, S1 stated that Complainant mentioned that he might need COTR training, but that in 2011, the COTR functions were centralized and assigned to another group. She stated that the other employees also did not receive the COTR training. In response to claim 3, S1 stated that laptops and cell phones were issued to those who traveled extensively; the continuity of operations team; the Disaster Recovery Team; and those who were on call 24/7 for critical time-sensitive support duties. She stated that Complainant did not fall into any of those categories. S1 stated that she did not recall any time when she called Complainant for an off-hours urgent request. She also stated that laptops were available to check out for situational needs, if Complainant had needed one for a specific purpose.
For claim 4, S1 stated that she provided nine months of informal training, and that Complainant's coworkers provided training and assistance on a regular basis. S1 denied assigning Complainant tasks for the purposes of failing him, and stated that she assigned him tasks based on skills that he repeatedly claimed to have extensive experience and ability. In regards to claim 5, S1 denied making those statements, but stated that she informed Complainant when his work was unacceptable. S1 stated that she repeatedly tried to correct him when his work was inaccurate, incomplete, or late. For claim 6, S1 stated that she only informed Complainant that she would write him up once, for the September 30, 2011 email incident. She stated that Complainant had violated an Agency security policy regarding emails, and that she would write him up if he did not confirm that he understood the policy in writing. S1 also stated that the Security Branch Chief (SBC) had noticed that Complainant left his workstation, without locking it. She stated that she informed Complainant that the SBC would write him up the next time he saw Complainant's computer unattended and unlocked.
Regarding claim 7, S1 stated Complainant can communicate with two of coworkers via email or verbally. However, she stated that after a dispute between Complainant and C1, she instructed them to communicate only via email for work-related matters. For claim 8, S1 stated that she saw that Complainant's time and attendance was recorded as less than 80 hours, and that she contacted him to correct the situation. She stated that she sent him the messages so that he would not be recorded AWOL. In response to claim 9, S1 stated that she issued Complainant the reprimand after a full investigation, and that he did not request an opportunity to respond to the reprimand. For claim 10, S1 denied discouraging Complainant from filing a complaint or contacting HR. S1 stated that when Complainant came to her to report the September 22, 2011 incident with C1, she was holding his personnel file in her hand. She stated that she did not mention or refer to his file, but that she noticed that he was looking at it. In response to claim 11, S1 clarified that the Letter of Counseling was issued prior to the reprimand; and stated that she issued the Letter of Counseling after an extensive investigation into the first incident with C1.
Additionally, we find that the record shows that Complainant's coworkers denied that anyone had instructed them to stop communicating with Complainant. C1 stated that she chose to stop communicating with Complainant after he accused her of stealing. The coworkers also stated that they assisted Complainant by providing informal training; and assisted him with completing his assignments, even completing his assignments for him.
We find that Complainant has not shown that the proffered reasons were pretext for discrimination. Accordingly, we find that the Agency did not discriminate against Complainant on the basis of reprisal for prior EEO activity when S1 allegedly did not provide him with COTR training; did not issue him a laptop or cellphone; assigned him tasks that he was not trained for; called his work bad; threatened to write him up; discouraged his coworkers from communicating with him; threatened to charge him with AWOL; issued him a reprimand; discouraged him from filing a complaint; and issued him a counseling letter.
Harassment
As discussed above, we found that Complainant did not establish a case of discrimination on any of his alleged bases. Further, we conclude that a case of harassment is precluded based on our finding that Complainant failed to establish that any of the actions taken by the agency were motivated by his protected bases. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM: (1) the AJ's sanction to dismiss Complainant's hearing request; (2) the Agency's dismissal of claim 1 for untimely EEO contact; and (3) the Agency's final decision finding that Complainant has not shown that he was discriminated against, or subjected to a hostile work environment, based on his prior EEO activity when S1 allegedly did not provide him with COTR training; did not issue him a laptop or cellphone; assigned him tasks that he was not trained for; called his work bad; threatened to write him up; discouraged his coworkers from communicating with him; threatened to charge him with AWOL; issued him a reprimand; discouraged him from filing a complaint; and issued him a counseling letter.
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
___9/15/16_______________
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 While we note that Complainant's July 11, 2014, appeal was premature, the Commission finds that the appeal is now ripe for adjudication as the Agency subsequently issued a final order on November 18, 2014.
3 Complainant's most recent EEO case was settled on May 27, 2010.
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