Alfonzo M.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

Aug 4, 2020

2019004504 (E.E.O.C. Aug. 4, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alfonzo M.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency. Appeal No. 2019004504 Agency No. FS201800384 DECISION 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 May 3, 2019, 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 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 a District Manager at the Agency’s Priest Lake Ranger District, Idaho Panhandle National Forests in Priest Lake, Idaho. On May 15, 2017, Complainant’s then first-line supervisor (S1) issued him a Notice of Proposed Removal for one specification of Misuse of Government-Issued Equipment and two specifications of Conduct Unbecoming a Federal Supervisor. Specifically, Complainant listed his government- issued cellphone number as his sole contact number on his personal business website; he posted “discourteous and disrespectful” comments in a public book review, in which he identified himself as an Agency employee, which reflected poorly on the Agency; and he made “discourteous and unprofessional” comments to S1 during a team meeting. 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. 2019004504 2 As part of S1’s decision, she considered Complainant’s past discipline. S1 noted that Complainant received a 30-day suspension on March 10, 2014,2 for sending “lewd, abusive, threatening, and intimidating” messages to another Agency employee using government-owned property. S1 found that the recurrence of similar misconduct demonstrated that Complainant’s potential for rehabilitation was weak. ROI at 440-3,592,594. On August 25, 2017, Complainant’s then second- line supervisor (S2) considered Complainant’s reply and mitigated the proposed removal to a 14- day suspension and a reassignment to a Forester (Silviculture) position at the Beaverhead- Deerlodge National Forest in Dillon, Montana. ROI at 128-30. On January 19, 2018, the Regional Forester (RF) informed Complainant that the Agency was closing his complaint of alleged harassment by S1, filed on August 25, 2017. RF stated that the Agency conducted an investigation into his allegations, but that Complainant would not be informed of any action taken to protect the privacy of the parties. On May 23, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him, and subjected him to non-sexual harassment, on the bases of sex (male), age (58), political affiliation, and in reprisal for prior protected EEO activity when on January 19, 2018, he learned that he was retaliated against when he was issued a Notice of Proposed Removal on May 14, 2017. The Agency informed Complainant that it accepted the proposed removal claim for investigation; however, it dismissed the following claims for untimeliness: 1. On August 25, 2017, Complainant was permanently reassigned from his position as a District Ranger (GS-12) in Priest Lake, Idaho, to a Forrester (GS-12) in Dillon, Montana; 2. From February 8, 2017, through October 1, 2017, Complainant was laterally reassigned to Priest Lake/Sandpoint Ranger District, and his request to be transferred back was denied; and 3. Complainant was subjected to harassment, when management failed to prevent the harassment and disciplinary action taken against him from May 15, 2017, through August 25, 2017. 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 EEOC 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). As an initial matter, the Agency dismissed Complainant’s the proposed removal claim as untimely raised with an EEO Counselor. 2 Complainant appealed the discipline to the Merit Systems Protection Board, which upheld the suspension. ROI at 474-523. 2019004504 3 The Agency found that Complainant initiated EEO counseling in February 2018, which was well after the issuance of the proposed removal on May 14, 2017, and the decision on the proposed removal on August 25, 2017. The Agency noted that Complainant provided evidence that he had a reasonable suspicion of discrimination prior to his initial EEO contact. For example, the Agency noted that on September 14, 2017, Complainant complained that S1 allegedly treated him disparately. The Agency also found that, even if the proposed removal claim was timely raised, the preponderance of the evidence showed that he was issued the Notice of Proposed Removal for his unprofessional conduct and inappropriate use of government property. The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination or harassment, as alleged. The Agency also found that its decision regarding political affiliation was not appealable to the EEOC. On appeal, Complainant argues that the harassment claim is timely because the final determination into his harassment allegation was issued on January 19, 2018. On appeal, the Agency argues that there is ample evidence to show that Complainant had a reasonable suspicion of discrimination months before he contacted an EEO counselor on February 8, 2018. For example, Complainant’s August 25, 2017 “CA-2” form showed that Complainant believed that S1’s harassment caused his health issues.3 The Agency argues that even if Complainant’s accepted claims are timely, Complainant did not show that the Agency’s reasons for disciplining him were pretext for discrimination or retaliation. The Agency also states that if Complainant’s harassment claim is somehow found timely, the record does not support Complainant’s allegation of a hostile work environment. The Agency notes that Complainant complained of disagreements over his work assignments, lack of communication, and alleged mismanagement of work-related matters, which were common workplace occurrences that do not rise to the level of harassment. 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 Chap. 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”). 3 A CA-2 form is the Department of Labor’s, Office of Workers’ Compensation Program’s Notice of Occupational Disease and Claim for Compensation. ROI at 434-8. 2019004504 4 As an initial matter, the Commission has the discretion to review only those issues specifically raised in an appeal. See id., at Chap. 9, § IV.A.3. On appeal, Complainant did not specifically contest the Agency’s procedural dismissal of his three earlier claims; as such, there is no definitive need to address these claims in the instant decision. In addition, claims based on political affiliation are not within the Commission's jurisdiction. See Doria D., v. Dep’t of Agric., EEOC Appeal No. 0120180984 (June 14, 2019); Terrell G. v. Dep't of Agric., EEOC Appeal No. 0120140544 (May 13, 2016). Accordingly, we will not address Complainant’s allegation based on his political affiliation (such a claim fails to state a claim and is dismissed pursuant to 29 C.F.R. § 1614.107(a)(1). We find that even if all the claims in the complaint were timely raised, Complainant failed to show that any Agency action was motivated by discrimination. Regarding the claim of harassment, we find that Complainant failed to show the alleged conduct was sufficiently or pervasive so as to constitute a hostile work environment. Regarding the proposed removal, we find that this action has been mitigated to a 14-day suspension and reassignment. The Commission has found that a proposed removal that never culminated in an actual removal, but was instead reduced to a suspension, triggers the merger of the proposed removal claim into the actual action claim (i.e., the suspension). See Willis v. Dep't of Veterans Affairs, EEOC Appeal No. 01A22778 (Apr. 9, 2003). Upon the merger of claims, the specific claim regarding the proposed action is dismissed and subsumed into the claim regarding the actual action. See Taylor v. U.S. Postal Serv., EEOC Appeal 01975649 (Sept. 18, 1998). Such a merger has now happened in this case, and the proposal to remove no longer exists (apart from its consideration in the claim of harassment) because it has merged with the actual decision on the proposal, which was the suspension and reassignment. To the extent that Complainant claims that he was discriminated against when he was suspended and reassigned, we find that these discrete claims were untimely raised with an EEO Counselor. EEOC regulation requires that complaints of discrimination should be brought to the attention of the EEO counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. §1614.105(a)(1). The Commission has adopted a “reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determine when the 45-day limitation period is triggered. See Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. Here, Complainant stated that he made management officials aware that he believed that he was being discriminated against based on his age, sex, and prior EEO activity, when he defended his proposed removal; and the record shows that Complainant replied to the proposed removal on May 31, 2017. ROI at 193, 129. We find that Complainant confirmed that he had a reasonable suspicion of discrimination on May 31, 2017, and that the decision to suspend and reassign Complainant was subsequently issued on August 25, 2017. Complainant did not initiate EEO counseling until February 8, 2018, which was well after his 45-day deadline. 2019004504 5 As such, we find that Complainant’s discrete claims that he was discriminated against when he was suspended and reassigned were untimely raised with an EEO Counselor and we find that the Agency’s dismissal of these claims was proper. Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the Complainant's employment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of harassment a Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. United States Postal Service, EEOC Appeal No. 01965238 (Oct. 16, 1998). Assuming, arguendo, that Complainant was subjected to unwelcome verbal conduct based on his statutorily protected classes, we find that he did not show that the alleged harassment rose to the level of a hostile work environment. For example, Complainant alleged that S1 harassed him when she was “angry” that he took a month off; she “humiliated” him when he was five minutes late for a meeting; and S1 had her Executive Assistant check if Complainant had been truthful when he claimed to have a deadline. ROI at 199, 201-2. In addition, Complainant stated that RF informed him that the investigation into his harassment complaint concluded, and that “appropriate action” was taken, but RF refused to disclose the “appropriate action,” The Commission has held that routine work assignments, instructions, and admonishments do not rise to the level of harassment because they are common workplace occurrences. See Gray v. United States Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010). Unless it is reasonably established that the common workplace occurrence was somehow abusive or offensive, and that it was taken in order to harass Complainant on the due to his protected classes, we do not find such common workplace occurrences sufficiently severe or pervasive to rise to the level of a hostile work environment or harassment. See Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120130465 (Sept. 12, 2014). There is no indication that the proposed removal (which was untimely raised as a discrete incident) was motivated by discrimination and RF’s alleged failure to disclose the “appropriate action” is only relevant if we had found that there was indeed a hostile work environment. Here, we find that Complainant has not shown that the alleged harassment was abusive or offensive. As such, we find that Complainant did not establish that the Agency subjected him to a hostile work environment based on his age, sex, or in reprisal for prior EEO activity. CONCLUSION Accordingly, we AFFIRM the Agency’s final decision. 2019004504 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. 2019004504 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 August 4, 2020 Date