0120063375
09-13-2007
Frederick D. Peterson, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.
Frederick D. Peterson,
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01200633751
Hearing No. 100-2005-00560X
Agency No. CRSD20040025
DECISION
On May 1, 2006, complainant filed an appeal from the agency's March 21,
2006 final action 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 action.
At the time of events giving rise to this complaint, complainant worked
as an Information Technology Specialist, GS-11, Program, Planning and
Management Division, Information Resources Management, Office of the
Chief Information Officer.
On May 19, 2004, complainant filed a formal EEO complaint, wherein
he claimed that he was discriminated against on the bases of race
(African-American), sex (male), and in reprisal for prior protected EEO
activity under Title VII of the Civil Rights Act of 1964 when:
1. On an ongoing basis, complainant's time and attendance has been
scrutinized more closely than similarly situated employees.
2. When complainant called in sick, he was treated differently from
similarly situated employees.
3. Complainant was placed on Absent Without Leave (AWOL) status when he
was out sick.
4. Complainant's continuing request for a reassignment has been denied.
5. Complainant's duties have been taken away from him.
6. Complainant's work products were scrutinized and determined to be
wrong and not accurate.
7. Complainant was given assignments to do and the Team Leader would do
them and then approach him and ask why he had not done the assignments.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing but subsequently withdrew his request. Subsequently,
the agency issued a final action pursuant to 29 C.F.R. � 1614.110(b)
wherein it determined that complainant failed to prove that he was
subjected to discrimination as alleged. The agency determined that
complainant's claims essentially pertained to his frustration with his
supervisors' management style and that the actions complained of were
not severe or pervasive enough to constitute actionable harassment.
With regard to complainant's claim concerning being denied a requested
reassignment, the agency notes that complainant did not request a
reassignment until during mediation and not until after he filed the
complaint. The agency dismissed this claim for failure to state a
claim in light of the fact that the request for reassignment was made
during settlement negotiations. As for complainant's attendance, the
Division Chief stated that complainant had used advance sick leave and
generally had little or no annual leave available. The agency stated
that the Division Chief asserted that when other employees were in the
same situation, their time and attendance received the same level of
scrutiny. According to the Division Chief, complainant failed to follow
procedures for calling in sick and failed to properly record his time on
the sign-in sheet. With regard to the claims concerning complainant's
work responsibilities, the Team Leader denied that complainant's duties
had been removed and also denied that a coworker's duties affected
complainant's assignments. The agency noted that the Team Leader listed
specific assignments for which complainant was responsible. The agency
stated that with respect to criticism of complainant's work, the Division
Chief and Team Leader stated that complainant lacked skills in the use
of office automation equipment and he failed to complete projects.
With regard to the claim that the Team Leader completed assignments
that she had given to complainant, the agency noted that the Team Leader
stated that when complainant did not report on the status of an important
project, she completed it to be certain that the project was timely.
On appeal, complainant contends that he was the only employee charged with
being AWOL despite the fact that several employees did not sign in or
out as required. Complainant argues despite the agency's assertions of
his unacceptable performance, at no time since his reassignment to the
division has he been placed on a performance improvement plan or given
a notice of unacceptable performance. Complainant maintains that the
agency improperly analyzed his complaint as isolated events rather than
an overall claim of a pattern of harassment or hostile work environment.
Complainant contends that constant criticism of and finding fault with
his work performance, not assigning him work, constantly scrutinizing
his time and attendance, and charging him with being AWOL when he was
ill or a few minutes late, when done on a regular and daily basis, were
sufficient actions to alter the conditions of his employment and create
a hostile and abusive work environment. Complainant maintains that the
harassment was related to his prior EEO activity and that the agency's
explanation for its actions is unworthy of belief. Complainant notes
that the agency acknowledged that he was the only division employee
who filed a complaint of discrimination and was also the only division
employee charged with being AWOL since January 1, 2002.
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
To establish a claim of harassment based on sex, race, or reprisal,
complainant must show that: (1) he is a member of the statutorily
protected class; (2) he was subjected to harassment in the form of
unwelcome verbal or physical conduct involving the protected class;
(3) the harassment complained of was based on the statutorily protected
class; and (4) the harassment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with the
work environment and/or creating an intimidating, hostile, or offensive
work environment. Humphrey v. United States Postal Service, EEOC Appeal
No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11. The harasser's
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).
Further, the incidents must have been "sufficiently severe and pervasive
to alter the conditions of complainant's employment and create an abusive
working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75
(1998).
For purposes of analysis, we will assume, arguendo, that complainant has
established a prima facie case of sex, race and reprisal discrimination.
Next, we shall consider whether the agency articulated legitimate,
nondiscriminatory reasons for its actions. With regard to the scrutiny
of complainant's time and attendance, the Division Chief stated that
complainant had used advance leave and had little or no sick leave
available. The Division Chief further explained that complainant was
charged with a half hour of being AWOL on May 7, 2004, because he arrived
to work late, failed to promptly sign in, and failed to accurately record
an arrival time at work. The Division Chief stated that complainant
reported that he arrived at work at 9:30 a.m., but that he actually
arrived at 9:55 a.m. As for complainant's claim that he was treated
differently from similarly situated employees when he called in sick, the
agency stated that pursuant to its procedures complainant was required to
call in to work each day that he was absent due to illness rather than
just the first day of an extended absence from work due to illness.
Thus, the agency cited complainant for being AWOL when he failed to
call in to work when he was absent on May 4 and 5, 2004. With respect
to complainant's claim that he was discriminatorily required to provide
documentation when he was absent due to emergency, the agency stated that
the Acting Division Chief explained that he lacked authority to issue
complainant advance leave and that he wanted to provide documentation
to the Division Chief. As for the claim that the Division Chief did not
answer complainant's telephone call, the Division Chief stated that she
did not refuse to answer the telephone on the day in question or any
other day when she was available to speak with complainant.
With regard to the claim that complainant's duties have been taken
away from him, the Division Chief denied that complainant's duties were
removed. Further, the Team Leader stated that complainant had ongoing
assignments such as tracking and maintaining training for IRM; tracking
and maintaining the Information Technology-Human Resources working group
list; and reviewing the business section of the Washington Post for
agency contracts. The Team Leader stated that complainant's duties have
not been taken away, but have been supplemented by other team members in
order to assure the completion of the assignments. As for the criticism
of complainant's work, the Division Chief stated that complainant's
technical competence needs improvement as he was not proficient in the
use of office automation tools and could not fulfill his responsibilities
regarding meetings when he only sporadically produced agendas and did
not prepare usable minutes. As for the claim that complainant was given
assignments to do that the Team Leader would do instead and then ask why
he did not do the assignments, the Team Leader stated that complainant
was instructed to assemble binders, but that she completed the assignment
after complainant failed to provide her with an update on their status.
We find that the agency has articulated legitimate, nondiscriminatory
reasons for each of its actions at issue.
With regard to the denial of complainant's request for a reassignment, we
observe that the investigation addressed the merits of this issue despite
the agency's subsequent dismissal of this claim on the grounds of failure
to state a claim. Rather than determine whether it was appropriate
for the agency to dismiss this claim because complainant was denied a
reassignment during mediation of his informal complaint, we shall address
the merits of the claim. The agency stated that it denied complainant's
request for a reassignment because there was work for him to do in his
current position. Further, the agency stated that complainant's previous
request for a reassignment to the Civil Rights Division was denied because
some of that Division's employees were seeking a permanent position and
the Assistant Secretary for Civil Rights did not want to bypass them in
favor of complainant. We find that the agency articulated legitimate,
nondiscriminatory reasons for denying complainant a reassignment.
Upon a thorough review of the record, including complainant's statement
on appeal, we find that complainant has failed to refute the agency's
explanation for its actions. Complainant has not disproved the agency's
assertions that he was disciplined in a nondiscriminatory way because
he failed to follow established procedures with regard to attendance and
notification of use of sick leave. Complainant also failed to refute the
agency's position that he experienced frequent difficulties in completing
his assignments and that at times it was necessary for other employees
to provide assistance in the completion of these assignments. Finally,
complainant has not established that the agency's explanation for denying
him a reassignment was pretext to mask discriminatory intent. The record
clearly indicates that the actions at issue taken by agency officials
were not acts of harassment based on race, sex, or reprisal, but rather
appropriate measures intended to address complainant's deficiencies in
terms of attendance, notification of leave usage, and job performance.
The agency's decision finding no discrimination is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
September 13, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
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01200633
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
6
0120063375