0120112495
04-24-2014
Complainant, v. Chuck Hagel, Secretary, Department of Defense (Office of the Defense Inspector General), Agency.
Complainant,
v.
Chuck Hagel,
Secretary,
Department of Defense
(Office of the Defense Inspector General),
Agency.
Appeal No. 0120112495
Agency No. OIG 10-05
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's March 1, 2011 final decision concerning an equal employment opportunity (EEO) complaint claiming 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Senior Auditor (Team Leader) at the Agency's Office of Deputy Inspector General for Auditing, Acquisition and Contract Management Directorate in Denver, Colorado.
On March 11, 2010, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On April 16, 2010, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the bases of disability, age (over 40), and in reprisal for prior EEO activity when:
1. on April 9, 2010, the Program Director retaliated against him when he prevented him from using his government issued computer to prepare his formal EEO complaint. Complainant further alleged that the Program Director intimidated, taunted and scolded him, and told him to leave the office because he was disrupting the workplace;
2. on January 8, 2010, he received his FY 2009 Annual Appraisal with a level "1 Unacceptable," rating which he alleged contained discriminatory examples of his disability; and
3. on October 27, 2009, he received a notification of misconduct for his delay in submitting a completed travel voucher into the Defense Travel System (DTS) from September 2008 until September 2009.
On May 7, 2010, the Agency issued a partial dismissal. The Agency accepted for investigation claim 1. However, the Agency dismissed claims 2 and 3 on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency determined that the alleged discriminatory events occurred on October 27, 2009 and January 8, 2010, respectively, but that Complainant did not initiate EEO Counselor contact until March 11, 2010, which the Agency found was beyond the 45-day limitation period.
The record reflects that Complainant later requested that the instant formal complaint be amended to include the following claims:
that he was discriminated against on the basis of reprisal for prior EEO activity when:
4. he was required to provide medical documentation to management before it would grant authorization for his additional sick leave usage, and he was issued a "Request for Medical Documentation" memorandum while he was out on sick leave; and
5. he received a mid-year performance assessment that was inaccurate, biased, cited examples of his disability and did not adequately reflect his performance.
After the investigation of claims 1, 4 and 5, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision on March 1, 2011, pursuant to 29 C.F.R. � 1614.110(b).
In its March 1, 2011 final decision, the Agency found no discrimination. The Agency found that Complainant did not show by a preponderance of the evidence that he was discriminated against on the basis of retaliation.1 The Agency further concluded that Complainant did not prove, by a preponderance of the evidence, that the Agency's proffered reasons for its actions were a pretext for discrimination.
Regarding Complainant's harassment claim, the AJ found that the evidence of record did not establish that Complainant was subjected to harassment based on retaliation. Specifically, the AJ found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
The instant appeal followed.
ANALYSIS AND FINDINGS
Disparate Treatment
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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 McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, 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 Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Agency management articulated legitimate, nondiscriminatory reasons for its actions. Regarding claim 1, the Program Director stated that during the relevant period, Complainant was granted twenty-four hours of annual leave for the express purpose of working on his EEO complaint. The Program Director further stated while on leave, Complainant came into the office multiple times to work on his EEO complaint. The Program Director stated that Complainant worked in a team environment and his team members saw him, but he was not actively engaged in the work of the office which was disruptive to the work environment.
Further, the Program Director stated "I don't think it's appropriate for someone that's on annual leave to be in the office. As I explained to him when we had our telecom, this is..it's a business office. A person [who is] on annual leave is not here doing the business of the office. It's not conductive to doing the work of the office...I also felt like there's issues...there's liability issues. What if he came in here and he gets hurt? He falls or . . . whatever could happen. ... [T]here's potential liability issues of someone being here on annual leave in the office. And as I said, it's just not conducive to . . . conducting the business of the office."
Regarding the assertion that the Program Director intimidated, taunted and scolded Complainant and told him to leave the office because he was disrupting the workplace, the Program Director stated that his voice was stern and may have sounded louder over the speaker telephone. Specifically, the Program Director stated "in my opinion, my voice was stern. I wanted to let [Complainant] know that I was serious about what I was telling him to do."
Regarding claim 4, the record reflects that Complainant was granted all leave he requested throughout the year. The record further reflects that Complainant was on approved leave when he requested an additional 80 hours of sick leave. The supervisor stated that the development of the "Request for Medical Documentation" was being processed by the Human Capital Advisory Services Office (HCAS) before Complainant's request for additional leave. The supervisor stated that she was advised by HCAS to send the letter to Complainant's resident via Federal Express.
Further, the supervisor stated that she directed Complainant to provide medical documentation while he was out on approved sick leave because and "if documentation is not received by the requested date and time, your absence may be charged to absence without leave." Specifically, the supervisor stated that Complainant "took a lot of leave between January and the April time frame. Some of it was annual leave where he cited he was filing complaints, and some of it was sick leave where he would cite on his leave request that he was suffering from ADHD or depression. So, he had had a lot of leave. He had been in the office very little. He had been in the office almost none of the month of March. And his assignments were not getting completed, and other people were starting to do his job because we couldn't wait. And I started seeking advice with HCAS and EEO, 'what is my role as a supervisor here?' I've approved a lot of leave for him. Things aren't getting done...HCAS advised me that if he really had a medical condition, we wanted more information to know what did he have, what's the prognosis, how can we accommodate him. So HCAS helped me develop this letter."
The supervisor stated that she did not discriminate against Complainant when she sent the letter requesting medical documentation. The supervisor stated that she wanted to help Complainant "perform better and to do the work he's assigned and to be a part of the team, and I wanted to be able to help him as much as possible and accommodate him and understand what I could do to make the situation better in performance."
The record reflects that Complainant did not provide the requested documentation until 45 days after his return to work, and he was not placed on Absent Without Leave status as was indicated in the request for medical documentation.
Regarding claim 5, the supervisor stated that she followed the guidance from the Audit Front Office regarding providing a midyear assessment to an employee was not performing in a satisfactory manner. The supervisor further stated "based upon this, I was told not to give one unless someone is performing unsatisfactorily. The other employees on my staff were performing satisfactorily. [Complainant] is the only one I felt was not. Thus, I feel I was informed that I needed to do it. I didn't see it as an option." For instance, the supervisor stated that management asked everyone to schedule his or her required Continuing Professional Education training and "everyone else had scheduled it and/or taken it. [Complainant] had not. I had reminded him a couple of times as well. He had not scheduled it."
The supervisor stated that Complainant did not address his coaching notes of an audit project in a timely manner and "I let him know that I felt he has not been cooperative in being a team player and helping to achieve the objectives of our audit. [Complainant] was upset by that and said, 'What do you mean? How do you say I haven't cooperated?' And I voiced that I felt he openly challenged me and that he would not do as I asked and that he tried to get others not to do as I asked. And I felt like that was disruptive and not cooperative." Moreover, the supervisor denied giving Complainant the interim assessment because of his prior protected activity and that "it was solely performance."
Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Hostile Work Environment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). It is also well-settled that harassment based on an individual's prior EEO activity is actionable. Roberts v. Department of Transportation, EEOC Appeal No. 05970727 (September 15, 2000). A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all of the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. The harassers' 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 (March 8, 1994).
In the instant case, we find that the record does not support a finding that Complainant was subjected to any Agency action that rose to the level of a hostile work environment. Moreover, the evidence does not establish that the incidents alleged by Complainant occurred because of his prior protected activity.
Finally, we note that Complainant, on appeal, challenged the Agency's May 7, 2010 partial dismissal of claims 2 and 3, relating to his unacceptable FY 2009 rating and notification of misconduct for his delay in submitting a completed travel voucher. In its partial dismissal, the Agency dismissed claims 2 and 3 on the grounds of untimely EEO Counselor contact.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within forty-five (45) days of the effective date of the action. The record discloses that the alleged discriminatory events occurred on October 27, 2009 and January 8, 2010, but that Complainant did not initiate contact with an EEO Counselor until March 11, 2010, which is beyond the forty-five day limitation period. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. Hence, we find that the Agency properly dismissed claims 2 and 3 for untimely EEO Counselor contact.
Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 24, 2014
__________________
Date
1 The record reflects that during the investigation, Complainant withdrew disability and age as bases. Therefore, the Agency only address Complainant's allegation of discrimination on the basis of reprisal.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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