0120152447
11-28-2017
Alonso T,1 Complainant, v. Elaine C. Duke, Acting Secretary, Department of Homeland Security (U.S. Secret Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Alonso T,1
Complainant,
v.
Elaine C. Duke,
Acting Secretary,
Department of Homeland Security
(U.S. Secret Service),
Agency.
Appeal No. 0120152447
Agency No. HSUSSS016562014
DECISION
On July 1, 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 June 2, 2015, final decision (FAD) 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Sergeant at the Agency's United States Secret Service Uniformed Division, Foreign Missions Branch facility in Washington DC.
On August 22, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of age (54) when:
1. From August 2013, Complainant was subjected to harassment.
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 discrimination as alleged. Specifically, the Agency found that the actions complained of were insufficiently severe to constitute 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 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").
Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.
This established order of analysis need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that complainant established his prima facie case of discrimination.
Complainant alleges that from August 2013 through August 2014, his first and second level Supervisors (S1 & S2: 36 and 45 years old respectively) rarely selected him for the "highly coveted and desired" daily patrol support positions and assignments typically assigned to sergeants and lieutenants. Complainant further alleges that from August 2013 through August 2014, he was required to stay over after hours and come in on his off days to complete work and mandatory training or face disciplinary action by S1 & 2 while similarly situated coworkers were provided time on the clock to complete these administrative duties. With regard to Complainant not being selected for daily patrol support positions and assignments, S1 & 2 both denied that Complainant was selected less often than similarly situated coworkers. See Report of Investigation (ROI), Tabs D3 & D4. With regard to Complainant being required to complete work tasks during his own time, S1 & 2 both averred that on occasion all similarly situated employees had to complete tasks beyond their regular work hours but denied that Complainant was treated differently than others outside of his protected bases. See id. The Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency's articulated reasons are pretextual. See Hicks; Burdine; McDonnell Douglas.
Following a review of the record we find that Complainant has failed to meet this burden. While Complainant stated that he disagreed with S1 & 2's claims, Complainant has not shown, by a preponderance of the evidence, that the Agency's articulated reasons for its actions are pretextual so as to mask discrimination.
Complainant alleges that the following incidents occurred: in October 2013, S1 did nothing when Complainant reported to him that he was offended by the cartoon pictures being placed throughout the Branch building regarding an incident that occurred at the Egyptian Ambassador's residence; in March 2014, S1 & another supervisor (S3: 34 years old) held Complainant after Roll Call and grilled him for an incident regarding a stop outside the Russian Embassy; on an unspecified date, S2 did not recognize Complainant for an award for the March 7, 2014 stop outside of the Russian Embassy, which resulted in the eventual arrest of a triple murder suspect; on March 10, 2014, S1 accused Complainant of being late on the submission of a report; on March 21, 2014, S1 ordered Complainant to re-write a draft report seven times, disagreed with his wording, and stated that he would not sign off on the report until Complainant changed the place of the accident from "Loading Dock" to "Parking Area"; on May 2, 2014, S1 angrily confronted Complainant and criticized him about how he handled an accident involving the Haitian Embassy; on May 15, 2014, S1 ordered Complainant to post a cruiser in an area that was unsafe because it blocked the view of traffic and the sign above the spot stated, "No Parking or Standing Anytime"; on May 26, 2014, Complainant notified S3 that S1 forced him to make so many changes to his reports that he could no longer swear to the truth of those reports if he were called in to court; on May 31, 2014, after responding to the scene of an injured bicyclist, S1 threatened Complainant stating, "If you ever sit again at an accident scene, I will personally punch you in the face. ...I will beat you up or punch you in the face next time"; on June 30, 2014, Complainant's performance evaluation contained negative comments; on an unspecified date. Complainant received a computer-generated notice that one of his official reports had been rejected by S1, even though the report had been approved by the Watch Commander and other Lieutenants; on unspecified dates. Complainant turned down many offers to work overtime because of the hostile work environment whenever the Watch Commander or S1 were working; on unspecified dates, S1 spoke to Complainant like a child, chastised him, and told him that it was his duty to lock the magnetic door leading to the control center.
In considering whether any of the above actions, whether individually or collectively, constitute harassment, the Commission notes that in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that 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 EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. 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 McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Furthermore, in assessing whether the complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. � 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request No. 05970077 (March 13, 1997). However, as noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment." The Court noted that such conduct "must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and . . . that the victim in fact did perceive to be so." Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001).
Following a review of the record we find that Complainant has not shown that the actions complained of either involved or were based on his protected bases. Nor has he shown that the harassment was sufficiently severe or pervasive to alter the terms of his employment.
On appeal, Complainant argues that the FAD failed to include additional disparate treatment claims. Following a review of the record, including specifically Complainant's Formal Complaint, we find that the Agency properly included all raised claims.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not met his burden of establishing, by a preponderance of the evidence, that discrimination occurred. We therefore AFFIRM the FAD.
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
November 28, 2017
__________________
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.
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0120152447