Virgilio C.,1 Complainant,v.Davita Vance-Cooks, Public Printer, United States Government Printing Office, Agency.

Equal Employment Opportunity Commission

Nov 16, 2018

0120172515 (E.E.O.C. Nov. 16, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Virgilio C.,1 Complainant, v. Davita Vance-Cooks, Public Printer, United States Government Printing Office, Agency. Appeal No. 0120172515 Agency No. CPO-16-30 DECISION On July 19, 2017, 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 June 13, 2017, 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 Printing Plant Worker (Multi-Color Sheetfed Press Operator) at the U.S. Government Printing Office (GPO or Agency) in Washington, D.C. On July 8, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian) and reprisal (prior protected EEO activity) when: (1) since November 10, 2015, his supervisor (S1) failed to address threatening and abusive behavior displayed by one of Complainant’s coworkers (CW);2 (2) since February 8, 2016, S1 repeatedly advised CW to file a complaint against him with the GPO Uniformed Police Branch; (3) on February 8, 2016, he was issued GPO Form 2021, 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 The basis of reprisal does not pertain to Claim 1. 0120172515 2 Recommendation for Corrective Action, recommending a seven-day suspension; (4) on March 16, 2016, he was issued a Notice of Proposed 7-Day Suspension; and (5) on June 9, 2016, he was issued a four-day suspension effective June 24, 2016. After 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). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. FACTUAL BACKGROUND Complainant asserts that on November 10, 2015, he was working on the six-color press3 when CW came into the work area, noticed the operator was missing, and turned the feeder off. Complainant states that CW cursed at him, asking him “do you have a f--king problem with that.” CW and Complainant exchanged words and Complainant reported the incident to his third-level supervisor (S3). At the time of the incident, CW was a Quality Controller in the Offset Press Section, Press Division. After learning of the incident, Complainant’s first-level supervisor (S1) informed CW and Complainant, in writing, that he was made aware of a verbal altercation involving both men and that he sought out witnesses to determine what happened. S1 received reports implicating both employees as being at fault. S1’s notes dated December 3, 2015, reflected that after reviewing the various statements he reached the conclusion that both, Complainant and CW, demonstrated “disrespect of [sic] use of insulting or abusive language.” S1’s follow-up note, dated January 19, 2016, stated that S2 had an agreement with Complainant and CW to meet and handle things amongst themselves. According to S3, she attempted to have the employees work things out so that they could move on from the situation. In addition, according to S3, the employees appeared to have resolved the matter until she learned from CW in February 2016 that he was approached by Complainant. None of Complainant’s supervisors witnessed the reported incidents between Complainant and CW. S1 noted that CW came to him on January 14, 2016, to report another incident involving Complainant, at which time he directed CW to make a formal complaint with the GPO police. CW complained to S1 again on January 19, 2016, to express concerns about Complainant, at which time S1 directed him again to the GPO police. On February 5, 2016, CW filed a police report asserting Complainant blocked his path in the hallway on January 20, 2016, and that Complainant came at him in a threatening manner in the restroom on January 29, 2016. Complainant denied having any contact with CW after the initial incident. 3 Complainant’s duties include setting up the feeder and ensuring that paper was moving properly through the press and is in register. 0120172515 3 Management conducted an investigation into the reported incidents between Complainant and CW. After considering the relevant information and consulting with Employee Relations, S1 issued a proposed a seven-day suspension to both Complainant and CW for disruptive conduct. Thereafter, Complainant’s fourth-line supervisor (S4) mitigated both proposed suspensions down to four days. CONTENTIONS ON APPEAL On appeal, Complainant contends that management officials treated him more harshly than CW in every action leading up to his suspension. Complainant argues that management officials credited several witness statements over his statements during its investigation into the incidents with CW. Complainant claims that Agency officials provided vague explanations for his suspension. Finally, Complainant argues that he should prevail because the Agency failed to adequately investigate his EEO complaint. Accordingly, Complainant requests that the Commission reverse the final decision. 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”). As a threshold matter, the Commission will address Complainant’s dissatisfaction regarding the investigation of his complaint. Complainant claims on appeal that the investigation was inadequate and that key information and evidence were not included. Upon review of the entire record, the Commission is not persuaded that the investigation into Complainant’s complaint was incomplete or improper. The Commission notes that Complainant failed to request a hearing with a Commission AJ, a process which would have afforded him the opportunity to conduct discovery and to cure alleged defects in the record. Therefore, we will proceed to addressing the merits of Complainant's complaint based on the evidence gathered during the investigation. Disparate Treatment To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. 0120172515 4 Furnco Constr. Corp. 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, 441 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cnty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). We assume for purposes of this decision that Complainant established a prima facie case of discrimination and reprisal. We find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. The investigatory record includes the Agency’s Employee Relations record which includes full explanations from the proposing and deciding officials regarding their bases for the disciplinary decisions. In addition, the record contains numerous witness statements. In addition, Complainant was afforded his full rights during the disciplinary process, and was represented by an attorney and a union official throughout the proceedings. The responsible management officials did not witness any of the misconduct and only had the statements from CW, Complainant and witnesses to the November incident, which implicated both employees. As a result, management issued both employees proposed seven-day suspensions that were later mitigated down to four days. Complainant asserts that witness statements in support of CW were fabrications. However, the record is devoid of evidence to establish that the responsible management officials treated Complainant in an unfair manner or weighed the evidence of misconduct unfairly. Upon review of the record we find insufficient evidence to show pretext or discriminatory and/or retaliatory animus on the part of any responsible management officials. Contrary to Complainant’s assertion, we find the affirmations of the responsible management officials sufficiently specific to meet the Agency’s burden of production. Hostile Work Environment To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his 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 Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). 0120172515 5 Therefore, to prove his harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of his protected classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. The Commission notes again that Complainant chose not to request a hearing; therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. Here, Complainant asserted that based on his protected classes, management officials subjected him to a hostile work environment. Complainant alleged several incidents of what he believed to be discriminatory or retaliatory harassment, including management’s failure to address threatening and abusive behavior by CW and culminating in his suspension. The Commission finds that Complainant has not shown that he was subjected to conduct sufficiently severe or pervasive to create a hostile work environment. Moreover, even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, Complainant failed to show that the Agency’s actions were based on discriminatory or retaliatory animus. The record reveals that management officials received reports from both Complainant and CW of alleged threatening and/or abusive behavior. Management officials investigated the conduct of both employees and interviewed witnesses to the incidents. Management reviewed the matter with Employee Relations, determined that both Complainant and CW had engaged in disruptive conduct, and issued proposed seven-day suspensions to both employees. Ultimately, management mitigated the suspensions down to four days to ensure the discipline was corrective rather than punitive in nature. Complainant has presented no persuasive evidence rebutting the Agency’s explanation for its actions. The Commission finds that Complainant has not shown that he was subjected to a discriminatory or retaliatory hostile work environment. Accordingly, the Commission finds that Complainant has not established that he was subjected to discrimination, reprisal, or a hostile work environment as to all claims alleged. CONCLUSION Accordingly, 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 insufficient evidence of discrimination or reprisal. 0120172515 6 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. 0120172515 7 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 November 16, 2018 Date