0120152733
12-21-2017
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Alejandro T.,1
Complainant,
v.
Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Federal Emergency Management Agency),
Agency.
Appeal No. 0120152733
Hearing No. 531-2011-00406X
Agency No. HS09FEMA00545
DECISION
On August 19, 2015, 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 August 3, 2015, final order 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 order.
ISSUE PRESENTED
Whether Complainant established that the Equal Employment Opportunity Commission Administrative Judge's (AJ) decision was not supported by substantial evidence in the record.
BACKGROUND
Complainant filed a complaint alleging that he was was discriminated against based on reprisal (prior EEO activity) when:
1. On July 27, 2009, he received a "Less than Expected" rating on teamwork in is third quarter performance evaluation;
2. On May 19, 2009, Management stated that he would not forget the complaint of contract irregularities (Fraud) that Complainant brought in September 2007;
3. On May 19, 2009, he was called into a meeting with Management and verbally attacked and accused of reporting safety issues to pay an installation cancellation of a 12' mesh satellite dish;
4. On May 8, 2009, he was informed that five of his co-workers submitted complaints about him. When Complainant asked Management, who complained and about what, Management condemned, attacked, and verbally abused him;
5. He was coerced, intimidated and threatened with disciplinary action by Management into sending an email excusing him from any association with the existence of the unsafe, and unauthorized modifications of the Simulstat dish antenna when it was Management's responsibility;
6. On May 6, 2009, he was told he was not getting a mesh dish and Management stated, "we're not having another (A-1) incident here," referring to a 2007 EEO complaint for which Complainant provided responses during an internal investigation;
7. On May 6, 2009, his primary responsibility was permanently rescinded because he spoke out about safety issues;
8. On April 30, 2009, he was criticized by management for responding to multiple reports of asbestos in the glue holding down the floor tile;
9. On March 31, 2009, he was to relocate a 12' mesh dish antenna, and before he installed it, he exposed a safety deficiency with the Simulstat safety apparatus. Management canceled the installation and provided there were no decision made to move the dish; and
10. On or about March 18, 2009, Management asked him if he participated in a "Best Workplace Practices Survey" because seven participants gave Management a low marking.
At the time of events giving rise to this complaint, Complainant worked as a TV/Broadcast/Electronics Technician at the Agency's Mount Weather Emergency Operations Center facility in Bluemont, Virginia. In 2009, Complainant received a "Less than Expected" rating on teamwork based on a series of confrontations with co-workers and management. The confrontations concerned Complainant's view of equipment and safety issues.
Complainant maintained that the work-place issues that arose in 2009 were related to his EEO activity that took place in 2007. This was because of a comment his supervisor made, in connection with one of Complainant's safety concerns that, "we're not having another (A-1) incident here."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). Complainant timely requested a hearing. The AJ held a hearing, and issued a decision on July 21, 2015. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
The AJ found that Complainant engaged in protected EEO activity when he was contacted by an Agency representative and answered a number of questions concerning an inquiry or complaint being pursued by A-1 in December 2007. The Agency was notified of the activity when Complainant emailed his supervisor and indicated that he had been contacted by the representative and answered a number of specific questions concerning the A-1's EEO complaint in December 2007.
Further, in May 2009, Complainant was notified of complaints made about him by other co-workers, which Complainant later claimed did not exist. In July 2009, Complainant received a "Less Than Expected" in "Team Work" in a third-quarter evaluation.
The AJ found that Complainant failed to demonstrate a causal connection between the prior EEO activity and the lower performance rating element given to him by his Supervisor. The AJ found that Complainant failed to establish a prima facie case with respect to his overall allegation of reprisal discrimination.
Even assuming that Complainant established a prima facie case of reprisal discrimination, the AJ found that the Agency articulated legitimate, non-discriminatory reasons for its actions. With respect to the evaluation given to Complainant, the AJ found that it was based on Complainant uncovering safety issues and teamwork related problems with both his supervisor and with other co-workers.
CONTENTIONS ON APPEAL
Among other things, Complainant, through counsel, insists that he has established a prima facie case of reprisal discrimination, and that the Agency failed to articulate a legitimate, non-discriminatory motive for its actions in the case. Specifically, we note his assertion regarding the AJ's findings that Complainant was retaliated against for reporting safety concerns. Complainant argues that this would expose the Agency to liability under the Occupational Safety and Health Act's OSHA) whistleblowing provisions.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (Aug. 5, 2015).
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ's factual findings are supported by substantial evidence in the record. Complainant did not establish a nexus between his prior EEO activity in December 2007 regarding A-1 and the issues that arose in 2009. The record supports the AJ's determination that the acrimony between Complainant, his immediate supervisor, and other co-workers was based on Complainant's more recent complaints about safety issues. There is no persuasive evidence that the reference to an A-1 incident involved Complainant's protected role in A-1's EEO complaint.
Further, if we presume, like the AJ, that Complainant established a prima facie case of reprisal discrimination, the record still supports the AJ's determination that he received the lower performance rating because of his relationship problems with management and his co-workers. To the extent that Complainant believes that the Agency has violated OSHA provisions, we note that this would not fall under our purview.
Finally, to the extent that Complainant maintains he was subjected to a hostile work environment based on reprisal, we find that the claims, even if accurately described by Complainant, were not severe or pervasive enough to establish a hostile work environment. See Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994). Moreover, we find that the interactions between Complainant and his supervisor were for the most part work-related interactions and we find no evidence that they were based on his prior EEO activity. While Complainant and management had different ideas about safety concerns, we find that Complainant did not demonstrate that discriminatory animus was involved.
CONCLUSION
Accordingly, for the reasons articulated above, the Commission AFFIRMS the Agency's final order.
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.
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
__12/21/17________________
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 Complainant, in 2007, responded to questions asked by an Agency representative about A-1. The record, including the hearing, contains no additional information about A-1's 2007 EEO activity or Complainant's further participation, if any.
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