Woodrow F., Complainant,v.Jeff B. Sessions, Attorney General, Department of Justice (Executive Office of the U.S. Attorneys), Agency.

Equal Employment Opportunity Commission

May 10, 2017

0120152765 (E.E.O.C. May. 10, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Woodrow F.,
Complainant,

v.

Jeff B. Sessions,
Attorney General,
Department of Justice
(Executive Office of the U.S. Attorneys),
Agency.

Appeal No. 0120152765

Agency No. USA2014000644

DECISION

On August 24, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s July 29, 2015, final decision concerning his equal employment opportunity (EEO)
complaint alleging that the Agency subjected him to a hostile work environment in reprisal for
his prior EEO activity. For the following reasons, the Commission AFFIRMS the Agency’s final
decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a GS-7 Human
Resources Assistant at the Agency’s U.S. Attorney’s Office for the District of Puerto Rico
facility in San Juan, Puerto Rico. On September 3, 2014, Complainant filed an EEO complaint
alleging that the Agency discriminated against him in reprisal for prior protected EEO activity.
Complainant stated that his prior EEO activity was when he supported his coworker’s EEO and
whistleblower complaints in October 2013. Complainant alleges that he was subjected to reprisal
when:

a. Complainant’s performance evaluation in April 2014 (for 2013) was “successful”.
b. On April 14, 2014, Complainant was denied promotion and reclassification from
Human Rights Assistant to Human Resources Specialist.

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.
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c. In January 2014, he was required to relocate his office next door to his supervisor.

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 (AJ). 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 reprisal as alleged.

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”).

Management officials stated that they had no knowledge of Complainant’s EEO activity until he
filed a formal complaint on June 14, 2014. Even if we assume that management knew of
Complainant’s prior protected activity, we find that Complainant failed to show that the
Agency’s articulated legitimate, nondiscriminatory reasons for its actions were pretextual.

The evidence shows that Complainant’s performance rating was “Successful” instead of
“Outstanding” because S1 and upper management were concerned about Complainant’s
tardiness, long lunch breaks, negative and unprofessional interaction with other employees, and
sleeping on the job. Regarding the denial of a promotion or reclassification, the Agency asserted
that Complainant had reached full promotion potential for his position at GS-7 and was not
eligible for further promotion. The Agency asserted that budgetary reasons and Complainant’s
work performance were reasons not to reclassify Complainant’s position. Regarding the
relocation of Complainant’s office, the Agency asserts that management simply wanted to be
able to supervise an employee more closely who was having performance issues.

We find that Complainant has not rebutted these legitimate, nondiscriminatory reasons, has not
shown these reasons were pretext for discrimination, and has not shown that similarly situated
individuals were treated differently. Furthermore, since we find that none of these actions were
discriminatory, we also find that Complainant has not shown that he was subjected to a
discriminatory hostile work environment.

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CONCLUSION

We AFFIRM the Agency’s decision finding no discrimination.

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
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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

May 10, 2017
Date