Darrell K.,1 Complainant,v.G. Wayne Clough, Secretary, Smithsonian Institution, Agency.Download PDFEqual Employment Opportunity CommissionOct 20, 20160120141178 (E.E.O.C. Oct. 20, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Darrell K.,1 Complainant, v. G. Wayne Clough, Secretary, Smithsonian Institution, Agency. Appeal No. 0120141178 Hearing No. 570-2014-00172X Agency No. 13-08-040113 DECISION Complainant filed an appeal from the Agency’s January 15, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 Desktop/POS Support Technician II at the Agency’s facility in Washington, D.C. On April 1, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of his sex (male), disability (permanent back condition), and in reprisal for prior protected EEO activity when: (1) from August 22, 2012 through March 1, 2013, he was subjected to a hostile work environment; and (2) on December 5, 2012, management issued him a leave restriction letter. 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. 0120141178 2 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). Despite Complainant’s request for a hearing, the Agency issued a final decision, dated January 15, 2014, concluding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. In response, Complainant filed the instant appeal. On January 20, 2016, the AJ who had been assigned to the case issued an order stating that because the Agency issued a final decision and Complainant’s appeal was pending before the Office of Federal Operations, the request for a hearing was denied. ANALYSIS AND FINDINGS As an initial matter we note that although Complainant argues about improprieties by the issuer of the final decision, Complainant has provided no specific claims or evidence to show any improprieties. Also, we find that the hearing request before an AJ was properly denied by the AJ. The AJ found that Complainant failed to attend a meeting between the parties and the AJ. The AJ also found that Complainant failed to provide requested documentation. On appeal, although Complainant’s representative argues that he was given short notice for the meeting and that the meeting was at an early time in the morning for him (7:00 am), he fails to claim he could not attend the meeting and he fails to explain why he never notified the AJ that he would not attend the meeting. Nor does Complainant claim that he ever provided the documentation referred to by the AJ. Thus, we find that the AJ’s actions were within the AJ’s discretion. 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”). To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially 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. Furnco Construction Co. 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, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, non-discriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a 0120141178 3 preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). Here, we find that assuming, arguendo, Complainant established a prima facie case of sex, disability, and reprisal discrimination, the Agency nonetheless articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the record shows that Complainant entered into his position in February 2008, and resigned his position, effective March 1, 2013, while on Family Medical Leave Act (FMLA) leave. Complainant’s supervisor (S1) states that in 2012, Complainant began using an excessive amount of emergency and unscheduled leave, particularly in connection with weekends or at times when S1 was already on leave, which made managing the workload of the office increasingly difficult. S1 states that he discussed the matter with both Complainant’s second-line supervisor and the human resources business partner (HRBS), and the HRBS states that after reviewing Complainant’s leave usage records, she recommended that a leave restriction letter be issued. S1 issued the leave restriction letter on December 5, 2012. Although Complainant contends that his leave requests were related to his disability, this contention is not supported by the evidence of record. Complainant subsequently requested, and was granted, FMLA paternity leave, effective December 31, 2012. We find that Complainant failed to show that the Agency’s actions were motivated by discriminatory or retaliatory animus, or that the Agency’s articulated reasons for its actions were pretextual. With respect to Complainant’s claim of harassment, the Commission finds that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by the Commission's determination that Complainant has not established that the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Finally, to the extent that Complainant alleges that he was forced to resign because of the Agency's discrimination, the Commission notes that the central question in a constructive discharge case is whether the employer, through its unlawful discriminatory behavior, made the employee's working conditions so difficult that any reasonable person in the employee's position would feel compelled to resign. Carmon-Coleman v. Dep't of Def., EEOC Appeal No. 07A00003 (Apr. 17, 2002). As stated above, we find that Complainant has not shown that the Agency's actions were motivated by discriminatory animus, thus we find that Complainant cannot establish the necessary elements to prove constructive discharge. CONCLUSION Based on a thorough review of the record, we AFFIRM the Agency’s final decision finding no discrimination. 0120141178 4 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. 0120141178 5 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 October 20, 2016 Date Copy with citationCopy as parenthetical citation