0120132594
10-01-2015
Frances A.1 Complainant, v. Thomas E. Perez, Secretary, Department of Labor, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Frances A.1
Complainant,
v.
Thomas E. Perez,
Secretary,
Department of Labor,
Agency.
Appeal No. 0120132594
Agency No. CRC1104078
DECISION
On June 24, 2013, Complainant filed an appeal from the Agency's May 22, 2013, final decision (FAD) 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Wage & Hour Investigator at the Agency's ESA-Wage and Hour Division facility in Fort Lauderdale, Florida.
On June 27, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Puerto Rican), sex (male), religion (Catholic), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when he was subjected to harassment when the following incidents occurred:
1. During a January 6, 2011 meeting, a District Director (DD: U.S., male, Jewish) told Complainant, "Call me son of a bitch but don't call me Jew son of a bitch because then you will be in trouble with me," and additionally stated, "If you complaint [sic] to EEO the relationship with Manager [sic] never is the same";
2. On October 19, 2010, Complainant's supervisor (S: Hispanic, female, Catholic) accused Complainant of being a "Santero" and practicing "Santeria" (a form of Witchcraft);
3. Throughout 2010, the Agency failed to distribute cases that Complainant had worked on equally between staff in the office;
4. In September 2010, Complainant discovered that cases he had worked on were reassigned to a younger employee;
5. Between 2009 and 2010, supervisors failed to appropriately follow up on Complainant's cases;
6. On June 9, 2010, a coworker (CW: American, female, Jewish) wrote minutes from the previous day's meeting stating, "Use of a foreign language other than English in the office is to be limited to strictly conversation with employers and claimants only if it is evident that they are not proficient in English";
7. On March 1, 2010, Complainant received "verbal discipline" in a threatening and insulting manner for wearing jeans and African shirts, and was further harassed about his clothing on May 5, 2010;
8. In March 2010, CW wrote in meeting minutes that ethnic attire was not appropriate in the office;
9. Between September 2007 and March 2010, Complainant was intentionally excluded from at least three important work-related seminars;
10. In October 2009, Complainant was falsely and publicly accused of sexual harassment;
11. In October 2009, Complainant's use of flexi-place and flexi-time was revoked while his casework was increasingly scrutinized;
12. S has continually dismissed and ignored Complainant's outstanding case investigations work and only given him a limited number of cases;
13. Since August 2011, the Agency has unreasonably delayed Complainant's ability to return to work from medical leave and utilize telework;
14. On October 20, 2011, Complainant received a "Minimally Satisfactory" rating for his FY 2011 performance appraisal;
15. In April 2011, the Agency took action to cause the cancellation of Complainant's health insurance while he was on leave and in the hospital; and
16. In October 2011, the Agency placed Complainant on a 90-day probationary period.
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 but subsequently withdrew his request. Consequently, 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 claims 2, 4, 6, 7, 8, 9, and 11 should be dismissed for untimely EEO Counselor contact. The Agency further found that, with regard to the remaining claims, Complainant articulated legitimate nondiscriminatory reasons for its actions and Complainant had not shown such reasons to be pretextual.
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").
Untimely EEO Counselor Contact
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination 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 a personnel action, within forty-five (45) days of the effective date of the action. EEOC regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
The Agency states in its FAD that it initially:
accepted these allegations for investigation in order to give Complainant every opportunity to make his case, and because it was unclear whether his illness and hospitalization could have prevented him from making timely counselor contact; at the time these claims were accepted, Complainant was unreachable and Complainant's wife informed us that he was hospitalized. Upon review of the full record, the agency has determined that these claims were not delayed by Complainant's hospitalization, and therefore they are dismissed at this time.
The Agency found that, with regards to claims 2, 4, 6, 7, 8, 9, and 11, the events occurred between October 2009 and October 19, 2010 but Complainant did not initiate contact with an EEO Counselor until December 7, 2010, which is beyond the forty-five (45) day limitation period. The Agency further determined that these acts were "discrete" acts.
The Supreme Court has held that a complaint alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002). The Court recognized that allegations of harassment and the existence of a hostile work environment involve, by their nature, a series of incidents linked by a pattern of conduct. This is contrasted with claims involving discrete acts such as a promotion or termination which are clearly defined. In those instances, the Court held that "discrete discriminatory acts are not actionable if lime barred, even when they are related to acts alleged in timely filed charges." Id. Untimely discrete acts may be used as background evidence in support of a timely claim, however. Id.
Applying the Morgan decision, the Commission finds that the Agency properly dismissed claims 9 and 11. Specifically, we find that being excluded from seminars and having one's use of flexi-place and flexi-time be revoked constituted are clearly defined "discrete acts" in the same way a promotion or a termination is clearly defined. Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact and we therefore find that he Agency correctly dismissed them for untimely Counselor contact.
We find the remaining acts are not a "clearly defined" discrete acts: being accused of practicing witchcraft (claim 2); discovering that cases Complainant had worked on had been reassigned to others (claim 4); management issuing a memo limiting work conversations to English only (claim 6); receiving a verbal warning and being harassed about clothing (claim 7); and management writing in meeting minutes that "ethnic attire" was not appropriate in the office (claim 8). Fortunately, the Agency investigated each of these incidents and addressed them on the merits and so we need not remand them for an investigation but may proceed to address the merits of these claims on appeal where warranted.
Disparate Treatment
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 252-5 3; 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 disparate treatment with regards to claim 8, 10, 13, 14, 15 & 16. With regard to claim 6, we find that Complainant is alleging the imposition of an English-only rule, which requires a separate analysis. Claim 6, therefore, shall be addressed below.
With regard to claims 1, 2, 3, 4, 5, 7 & 12, however we find that such claims fail to state claims of disparate treatment. We note that the Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). We find that: being told "don't call me Jew son of a bitch"; being accused of practicing Santeria; not having one's cases distributed equally throughout the office; having one's cases be reassigned to a younger employee; having supervisors fail to appropriately follow up on one's cases; receiving a verbal warning and being harassed about clothing; and having a supervisor continually dismiss and ignore one's outstanding case investigations work and being given only a limited number of cases, are not the kind of actions that result in a harm or loss so as to render Complainant aggrieved.
With regard to claim 8, wherein CW wrote in meeting minutes that ethnic attire was not appropriate in the office, the record show she was merely transcribing S's comments. S averred that she told Complainant "that African shirt [sic] is not considered professional attire. Professional attire is required when we are conducting official business." Affidavit B, p.40. DD averred that he came across Complainant one day and "I thought he was dressed too casually for business. So, quietly and privately, I told him that he needed to present a more professional appearance." Affidavit D, p. 6. In a Supplemental Affidavit, S averred that:
I reminded the staff to wear professional attire. [Complainant] wore, and continues to wear, attire that is regularly inappropriate for work. This is the case with respect to the so-called "African Shirt." This shirt, African or otherwise, was very loud, and had an open-collar and low neck, which exposed much of [his] upper torso. I referred to this garment as an African Shirt for descriptive, not discriminatory purposes. Clearly, there is no specific dresscode for staff. However, personal appearance is included in [employee's] standards. Part of my job is to assist all staff meet or exceed their standards, which includes professional appearance, and demeanor. In the performance of our duties, we are required to meet with attorneys, accountants, and employers on a regular basis. As a professional courtesy to the individuals with whom we
interact, I have asked [employee's] to wear professional attire. To be specific, a shirt that reveals a person's chest is not professional.
Supplemental Affidavit, unnumbered page.
With regard to claim 10, wherein Complainant was allegedly falsely and publicly accused of sexual harassment, a Senior Investigator (SI: Caucasian, female, no claimed religion) averred that:
One female came into my office and made a formal sexual harassment complaint against [Complainant]. I believe she told me he harassed another female in the office. I followed our [Agency] sexual harassment procedures. I telephoned [Complainant] and notified him of the situation. I asked [Complainant] to come into my office. I told him that a female (or two) had reported being sexually harassed by him. I told him of the allegation but not who had filed it. I asked for his explanation of the claim. He said women should not dress sexually if they did not want men to look at them. I asked him to retake the online sexual harassment training, then we would continue our discussion. After taking the training, [Complainant] told me that he understood even if he did not mean to harass, if the women perceived harassing behavior, it was so. He accepted responsibility for his actions and promised that it would not happen again. I wrote up some verbal warning notes and placed them in his personnel file.
Affidavit C, p. 17.
With regard to claim 13, wherein Complainant alleges that the Agency unreasonably delayed his ability to return to work from medical leave, and denied him telework, the record shows Complainant was out on extended medical leave from "the beginning of March 2011" to September 9, 2011. See Affidavit A, p. 44. S averred that Complainant had been on extended medical leave due to a job-related illness and had filed a claim with the Office of Worker's Compensation Programs (OWCP) benefits. See Affidavit B, p. 19. As such, S averred, she believed his ability to return to work had to be determined by OWCP and she was unaware at the time that Complainant's OWCP claim had been denied. See id. S denied that Complainant's return to work was unreasonably delayed, saying "He needed to provide some medical certification indicating whether he was able to perform his job as a Wage & Hour Investigator because he had filed a claim for a job related illness" Id., p 22. S further averred that Complainant's medical restrictions included a ten pound lifting restriction and frequent bathroom breaks but that his job required lifting no more than one pound and he had "access to the bathrooms as many times as he needs to." See id., pp. 20-24. With regard to the denial of telework, S averred that telework could be denied if:
Performance standards are not being met or conduct is unacceptable[, or n]ormal production and quality of work are not being maintained. Complainant . . . needs to work under close supervision. During the previous FY 2011, [he] was out on extended leave and therefore some of his cases had to be reassigned. In some cases, work was done but it was done incorrectly. . . . This [telework] request was discussed with [DD] and after reviewing the quality of the cases submitted and cases that had to be re-assigned, it was determined that [Complainant] needed close supervision in order to help him succeed as an Investigator."
Id.
The Deputy Regional Administrator (DRA: American, male, Catholic) corroborated S's statements, explaining that "The doctor's note submitted on August 11, 2011 did not sufficiently address whether [Complainant] was "fit for duty" based on his job description. . . . [Agency] Regulations allow management to require the employee to submit a medical release before returning to work after an extended period of time." Affidavit G, p. 4.
With regard to claim 14, wherein Complainant alleged he received a "Minimally Satisfactory" rating for his FY 2011 performance appraisal, S averred that she gave Complainant that rating because "his productivity was low and the quality of work was poor." Id., p. 28. S maintained that she did not give Complainant a mid-year discussion whereby he might have been made aware of any deficiencies and how to improve because he was out on extended medical leave during that period. S averred that prior to going on medical leave, "on some cases, he charged time however no work or very little work was done." Id. With regard to claim 15, wherein Complainant alleges that the Agency took action to cause the cancellation of his health insurance while he was on leave and in the hospital, a Human Resources Specialist (HR: American, female, Southern Baptist) averred that Complainant's medical benefits were discontinued "when he transferred from his previous position to one serviced by the Atlanta Region." Affidavit H, p. 3. A copy of Complainant's 2006 Health Benefits Election Form reveals that Complainant left Part B - Present Plan, and Part C - New Plan, blank. See Exhibit 11, p. 1. Finally, with regard to claim 16, wherein Complainant was placed on a 90-day probationary period, S averred that this was done to provide Complainant "an opportunity to improve [his] performance." Affidavit B, p. 30.
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 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 252-5 3; McDonnell Douglas, 411 U.S. at 804. Following a review of the record we find that Complainant has failed to meet this burden.
With regard to claim 8, Complainant argues "I disagree with this because I have always worn the African shirts on Fridays and this is part of my ethnical [sic] background. This was directed specifically to me and being singled out is just another harassing situation that is retaliation and causes emotional stress. It is discriminatory and an insult to my ethnic background." Affidavit A, p. 17. Complainant further stated that the action was directed at him because "I am the only employee who works under [S] that wears these ethnic shirts." While Complainant disagrees with S's belief that his shirts were unprofessional, he has not shown that S's actions were based on his national origin, sex or in reprisal for protected EEO activity.
With regard to claim 10 Complainant, contends that the charges against him were unfounded and that many of his work colleagues, including colleagues in other locations, came to learn about the allegations against him, causing him embarrassment. While Complainant believes that the charges were unfounded, he has not shown, by a preponderance of the evidence, that the Agency's articulated reason for its action was a pretext to mask intentional discrimination or reprisal.
With regard to claim 13, Complainant referenced a series of emails between himself and various management officials that show his efforts to return to work after his medical absence. See Affidavit A, pp. 72-79. These emails reveal that management officials believed that Complainant needed to first obtain clearance from OWCP before returning to work, and further show Complainant was required to provide more medical information from his physician. We do not find, however, that they show evidence of discrimination or reprisal. On appeal, Complainant argues that S was aware that Complainant's OWCP claim had been denied but provides no proof of this claim. To the extent Complainant is alleging he was denied a reasonable accommodation when telework was denied, we note that Complainant's medical restrictions limiting him to lifting no more than ten pounds and having frequent bathroom breaks were met. While his physician's August 11, 2011 letter also includes telework as a restriction, the doctor did not explain why telework was medically necessary. See id., Exhibit 13-4.
With regard to claim 14, Complainant argues that management should have taken into account the fact that he was out on medical leave for an extended period. See id., p. 56. Such an argument, however, fails to address S's contention that his evaluation was based on his work prior to his extended medical leave. On appeal, Complainant argues that he was not provided any notice that his performance needed improving. See Appeal Brief, p. 55. Even assuming it was unfair of S not to have provided Complainant with notice of his deficiencies and a chance to improve, he has not shown that S's actions were based on discrimination or reprisal and we again find that Complainant has not established that the Agency's articulated reason for its action is a pretext.
With regard to claim 15, Complainant argues that his medical benefits could not have been cancelled in 2006 due to his failure to correctly fill out his medical insurance selection form because he had insurance from 2006 and ongoing until it was discontinued in 2011 when he was out sick. See id., p. 65. He submitted an email dated September 15, 2006 from an Agency Official stating "you are being returned to duty as a wage hour investigator with the same benefits that you had before your disability retirement" see Appeal Brief, Exhibit 15, and maintains that this shows that he did have full medical benefits in 2006. Complainant concedes he does not know who is responsible for allegedly cutting his medical coverage, see ROI Affidavit A, p. 52, and the record does not fully explain why Complainant had no medical coverage when he was out sick in 2011, but Complainant bears the ultimate responsibility of establishing, by a preponderance of the evidence, that an act of intentional discrimination or reprisal, as opposed to an unfortunate bureaucratic error, occurred. This, however, Complainant has failed to do.
With regard to claim 16, Complainant again contends that any deficiencies in his performance were due to the fact that he was out on extended medical leave. See id., p. 54. Once again we find that Complainant has failed to meet his burden of establishing that the Agency's articulated reason was a pretext to mask intentional discrimination or reprisal.
Harassment Claims
We note initially that, with regard to claims 8, 10, 13, 14, 15 and 16, to the extent that Complainant is alleging that these constitute incidents of harassment, we find under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that such incidents may not be considered based on our finding that complainant failed to establish that any of the actions taken by the agency were motivated by discriminatory animus or retaliatory motive. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000) ; Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). We are therefore left with the remaining actions: DD told Complainant, "Call me son of a bitch but don't call me Jew son of a bitch because then you will be in trouble with me," and additionally stated, "If you complaint [sic] to EEO the relationship with Manager [sic] never is the same"; S accused Complainant of being a "Santero" and practicing "Santeria" (a form of Witchcraft); the Agency failed to distribute cases that Complainant had worked on equally between staff in the office; Complainant discovered that cases he had worked on were reassigned to a younger employee; supervisors failed to appropriately follow up on Complainant's cases; Complainant received "verbal discipline" in a threatening and insulting manner for wearing jeans and African shirts, and was further harassed about his clothing on May 5, 2010; and S has continually dismissed and ignored Complainant's outstanding case investigations work and only given him a limited number of cases.
In considering whether any of the above actions, whether individually or collectively, constitute harassment, the Commission notes that in Harris v. Forklift Systems, Inc, 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 above-identified incidents created discriminatory changes in the terms and conditions of Complainant's employment. With regard to the allegation that DD said "If you complaint [sic] to EEO the relationship with Manager [sic] never is the same," we note that DD denied making such a statement.
English-Only Rule
With regard to claim 6, Complainant averred that during a CW averred that "the only involvement I had was to type the minutes based upon what was discussed at the meeting that was led by [S]." Report of Investigation (ROI), Affidavit E, p. 4. S averred that "based on guidance received from EEOC, I instructed staff at the [facility] that use of a language other than English should be limited to personal conversations, during breaks, and when communicating with claimants and employers not proficient in English. Any job-related topics/issues were to be discussed in English." ROI, Affidavit B, p. 4. Complainant argues that "when I speak Spanish it does not affect my performance so it is not necessary for the business/ workplace overall success of my job for me to always speak English. Also here in South Florida there are many Spanish speaking clientele so many times Spanish is also a necessity in the job place." Affidavit A, p. 14.
Upon review, we find that Complainant was not subjected to a speak-English-only rule. See 29 C.F.R. � 1606.7(b) (a rule requiring that employees speak only in English at certain times must be justified by business necessity); EEOC Compliance Manual, Volume II, Section 623 ("Speak-English-Only Rules and Other Language Policies"); New Compliance Manual, Section 13 - National Origin Discrimination (November 22, 2002) ("An English-only rule would be unlawful if it were adopted with the intent to discriminate on the basis of national origin"); Funes v. Department of Homeland Security, EEOC Appeal No. 0120051364 (December 4, 2006) (finding that no English only rule existed where the manager told complainant to speak English only while on duty); Vindas-Krych v. United Stated Postal Service, EEOC Appeal No. 01A45939 (August 31, 2006) (finding that no English only rule existed where complainant was instructed not to speak Spanish while in the presence of another employee who did not speak Spanish); Wallace v. Department of Commerce, EEOC Appeal No. 01A15109 (January 23, 2003) (finding that no English only rule existed where complainant made a statement in Spanish, and the manager told her to speak English only).
While Complainant argues that so "it is not necessary for the business/workplace overall success of my job for me to always speak English," we note that Complainant was not directed to "always speak English." Instead, he was directed to limit Spanish to "personal conversations, during breaks, and when communicating with claimants and employers not proficient in English." With regard to his argument that "here in South Florida there are many Spanish speaking clientele so many times Spanish is also a necessity in the job place," we note that S allowed for this when she permitted Spanish to be spoken "when communicating with claimants and employers not proficient in English."
Finally, we note that Complainant on appeal contends that he has been subjected to additional instances of discrimination and reprisal. Complainant may raise such new claims before an EEO Counselor, pursuant to 29 C.F.R � 1614.105.
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 or reprisal occurred. We therefore AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 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, 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 (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 Complainants 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
October 1, 2015
__________________
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
0120132594
2
0120132594