Marcos S.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

Feb 7, 2019

0120171782 (E.E.O.C. Feb. 7, 2019)

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

Marcos S.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture,
Agency.

Appeal No. 0120171782

Hearing No. 570-2014-01169X

Agency No. FAS201301035

DECISION

On April 20, 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
April 20, 2017, final decision concerning his equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 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 an Agricultural
Economist, GS-0510-12, at the Foreign Agricultural Service in Washington, D.C.

On October 5, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of age (60) and reprisal (prior and current EEO activity) when:

1. In July 2013, his request to extend his Time in Service (TIS) was denied;
2. On December 6, 2011, he learned that he was not selected for an at-grade level post in
Jakarta, Indonesia;

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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3. On October 18, 2011, he learned that he was not selected for any of the at-grade posts
upon which he bid, but rather, he was assigned to a below-grade post in Algiers,
Algeria; and

4. On several dates, he was subjected to various acts of harassment, including, but not
limited to:

a. between October 18, 2011 and December 6, 2011, he was told that he could not
bid on a second-round post unless he vacated his Algiers assignment;

b. in December 2012, he was “cornered” during an official meeting, in an effort
to intimidate him into accepting a letter of discipline;

c. on June 25, 2013 and July 2, 2013, he was advised that he was required to retire
from duty on November 30, 2013; and

d. in September 2013, his supervisor repeatedly requested medical documentation
for his previously approved leave, and threatened to rescind approval if he failed
to provide such.

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). Complainant requested a hearing. On
November 21, 2016, the AJ granted the Agency’s December 18, 2015, motion for partial dismissal
of Complainant’s claims. In granting the motion, the AJ determined that dismissal was warranted
for claims (2) and (3) because Complainant had previously filed a grievance regarding the same
matters pursuant to the negotiated grievance procedures in the collective bargaining agreement.
Additionally, the AJ dismissed all of Complainant’s remaining claims, except claim 4(d), because
he failed to initiate timely contact with an EEO counselor within 45 days of the alleged incidents
of discrimination. Complainant subsequently withdrew his request for a hearing. Consequently,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).

The Agency issued a final decision on April 20, 2017. In the decision, the Agency adopted the
AJ’s decision to dismiss claims (2) and (3) and found no discrimination for the remaining claims.
The Agency analyzed the allegations in claim (4) as discriminatory harassment. For these claims,
the Agency articulated legitimate, nondiscriminatory reasons to prove that the alleged incidents of
harassment were not related to Complainant’s age or prior protected EEO activity.

For claim 4(a), the Agency explained that Complainant was told that he could not bid on a second-
round post without first vacating his position because standard operating procedures require
bidding employees to first vacate their positions so others may bid to take their place. Regarding
claim 4(b), the Agency did not obtain an affidavit from the Area Director for Europe, whom
Complainant named as the responsible management official.
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As for claim 4(c), the Agency explained that Complainant was forced to retire on November 30,
2013, because the collective bargaining agreement expressly limits all career officers between
classes 4 through 1 to 22 years of Time in Service. As Complainant’s request for a 6-month
extension had been denied, he had to retire on November 30, 2013, in accordance with the
collective bargaining agreement. For claim 4(d), the Agency explained that human resources
personnel requested additional medical documentation from Complainant due to the number of
hours of leave he had requested.

The Agency determined that the alleged incidents taken together did not establish a prima facie
case of harassment, as such actions were insufficiently severe or pervasive to create a hostile work
environment, and could not be attributable to Complainant’s age or prior protected EEO activity.

The Agency analyzed claims (1) and 4(d) as discrete acts of discrimination. For claim (1), the
Agency averred management officials denied Complainant’s request to extend his Time in Service
because they did not believe it was in the best interest of the Agency to grant his request. The
Agency determined that Complainant failed to demonstrate that the Agency’s articulated
legitimate, nondiscriminatory reasons for denying his Time in Service or requesting medical
documentation were pretext for age discrimination. Additionally, the Agency found that
Complainant did not establish a prima facie case of discrimination on the basis of reprisal because
of the large timespan between the Agency’s actions and his protected EEO activity. The Agency
concluded that Complainant failed to prove that the Agency subjected him to discrimination 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”).

On appeal, Complainant contends that the Agency violated the AJ’s order to issue a final decision
within 60 days of the Order of Voluntary Dismissal. Complainant requests that the Commission
enter default judgment in his favor due to the Agency’s failure to appear at the June 2016 initial
conference and subsequent failure to issue a timely final decision. In response, the Agency
contends that the 59-day delay in issuing the final decision does not warrant sanctions because
Complainant did not articulate any harm or prejudice caused by the delay. Additionally, the
Agency argues that Complainant’s decision to withdraw his hearing request precludes any review
of matters related to the hearing.

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As a preliminary matter, we will address Complainant’s request for default judgment as a sanction
for the Agency’s untimely issuance of a final decision. Generally, our regulations require an
agency to issue a final decision within 60 days of receiving notification that a complainant has
requested an immediate decision from the agency, or within 60 days of the end of the 30-day period
for the complainant to request a hearing or an immediate final decision where the complainant has
not requested either a hearing or a decision. 29 C.F.R. § 1614.110(b). Compliance with these
timeframes is not optional; as the Commission stated in Royal v. Dep’t of Veterans Affairs, EEOC
Request No. 0520080052, “the Commission has the inherent power to protect its administrative
process from abuse by either party and must ensure that agencies, as well as complainants, abide
by its regulations.” Because of the length of time it can take to process a federal sector EEO
complaint, any delays in complying with the time frames in the regulations can impact the outcome
of the complainant's claims. Id.

Our sanctions serve a dual purpose. On the one hand, they aim to deter the underlying conduct of
the non-complying party and prevent similar misconduct in the future. Barbour v. U.S. Postal
Serv., EEOC 07A30133 (June 16, 2005). On the other hand, they are corrective and provide
equitable remedies to the opposing party. Given these dual purposes, sanctions must be tailored to
each situation by applying the least severe sanction necessary to respond to a party's failure to
show good cause for its actions and to equitably remedy the opposing party.

In the instant case, we find that the Agency’s delay in issuing the final decision does not warrant
default judgment. In so finding, we acknowledge that the Agency failed to comply with our
regulations. However, Complainant has not articulated any harm or prejudice caused by the 59-
day delay. See, e.g., Josefina L. v. Soc. Sec. Admin., EEOC Appeal No. 0120142023 (July 19,
2016), req. for recon. den'd, EEOC Request No. 0520170108 (Feb. 9, 2017) (finding that the
Agency's alleged 571-day delay in issuing the agency decision did not warrant sanctions, as
complainant did not show she was prejudiced by the delay); Jocelyn R. v. Dep't of Def., EEOC
Appeal No. 0120152852 (Mar. 11, 2016) (citing Vunder v. U.S. Postal Serv., EEOC Appeal No.
01A55147 (May 12, 2006) (declining to sanction an agency that issued a decision after
approximately 371 days)). We note that there is no indication that the Agency failed to promptly
investigate the complaint. Accordingly, we deny Complainant’s request for default judgment.

Regarding Complainant’s request for reversal of the AJ’s decision not to sanction the Agency
following the June 2016 initial conference, we find that Complainant’s voluntary withdrawal of
his hearing request precludes our review of all matters related to the hearing. Complainant cannot
evade the prohibition on interlocutory appeals from AJ rulings by seeking to withdraw his hearing
request in order to obtain appellate review of a final decision only for purposes of obtaining a
reversal of the rulings. See Valdez v. U.S. Postal Serv., EEOC Appeal No. 01A00196 (May 11,
2000).

We agree with the Agency’s decision to adopt the AJ’s dismissal of claims (2) and (3) because
Complainant had previously filed a grievance regarding the same matters pursuant to the
negotiated grievance procedures in the collective bargaining agreement.
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The regulation set forth at 29 C.F.R. § 1614.107(a)(4) provides that an agency may dismiss a
complaint where the complainant has raised the matter in a negotiated grievance procedure that
permits claims of discrimination. EEOC Regulation 29 C.F.R. § 1614.301(a) provides that when
a person is employed by an agency subject to 5 U.S.C. 7121(d) and is covered by a collective
bargaining agreement that permits allegations of discrimination to be raised in a negotiated
grievance procedure, a person wishing to file a complaint or a grievance on a matter of alleged
employment discrimination must elect to raise the matter under either part 1614 or the negotiated
grievance procedure, but not both.

The record shows that Complainant filed a grievance concerning his nonselection claims on
December 10, 2011, and received a decision from the Foreign Service Grievance Board on April
17, 2013. Under the terms of the Agency's collective bargaining agreement (i.e., 3 FAM 4400),
employees have the right to raise matters of alleged discrimination under the statutory procedure
or the negotiated grievance procedure, but not both. Because Complainant elected to pursue the
matter in accordance with the negotiated grievance procedures, he cannot raise the same claims
under the EEO process. Consequently, we find that the Agency properly dismissed claims (2) and
(3) pursuant to 29 C.F.R. § 1614.107(a)(4).

Assuming for the sake of argument that the remainder of the complaint (claims 1 and 4) were
timely raised with an EEO Counselor, we agree with the Agency that Complainant has failed to
show by a preponderance of the evidence that he was subjected to discrimination or a hostile work
environment.

As for Complainant’s allegation that he was subjected to harassment, he 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 Agency. See Henson v. City of Dundee, 682 F.2d 897
(11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a
reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). Further, the incidents must have
been “sufficiently severe and 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);
see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75 (1998). We will assume
arguendo that the events occurred as Complainant described and were unwanted. We note,
however, that the Agency articulated legitimate, nondiscriminatory reasons to prove that the
alleged incidents of harassment were not related to Complainant’s age or reprisal for prior
protected EEO activity.

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Even if we treat claim (1) as a discrete act of discrimination, we still find no discrimination. We
note that the Agency articulated legitimate, nondiscriminatory reasons for its action, namely that
the denial of the request for extension was in the best interest of the Agency (budget
considerations). Complainant has not rebutted the Agency’s articulated reasons or identified any
other career officers outside his protected class who were treated more favorably.

For claim 4(a), the Agency explained that Complainant was told that he could not bid on a second-
round post without first vacating his position because standard operating procedures require
bidding employees to first vacate their positions so others may bid to take their place. As for claim
4(c), the Agency explained that Complainant was forced to retire on November 30, 2013, because
the collective bargaining agreement expressly limits all career officers between classes 4 through
1 to 22 years of Time in Service. As Complainant’s request for a 6-month extension had been
denied, he had to retire on November 30, 2013, in accordance with the collective bargaining
agreement. For claim 4(d), the Agency explained that human resources personnel requested
additional medical documentation from Complainant due to the number of hours of leave he had
requested.

After careful review of the evidence of record, we find that the preponderance of the evidence does
not show that Complainant was subjected to discriminatory harassment as alleged. In so finding,
we acknowledge that the Agency did not articulate a legitimate, nondiscriminatory reason for the
alleged incident in claim 4(b). Nevertheless, we find that claim 4(b), standing alone, is insufficient
as a one time incident to constitute a hostile work environment.

CONCLUSION

We AFFIRM the Agency’s final decision.

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.
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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.

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.

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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

February 7, 2019
Date