James C. Davis, Complainant,v.Janet Napolitano, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity CommissionDec 8, 2011
0120103033 (E.E.O.C. Dec. 8, 2011)

0120103033

12-08-2011

James C. Davis, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.




James C. Davis,

Complainant,

v.

Janet Napolitano,

Secretary,

Department of Homeland Security

(Immigration and Customs Enforcement),

Agency.

Appeal No. 0120103033

Agency No. HS-05-ICE-000470

DECISION

Complainant filed an appeal from the Agency’s June 21, 2010 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 Physical Security Specialist at the Agency’s Federal Protective

Services facility in Atlanta, Georgia. On July 7, 2005, Complainant filed

an EEO complaint alleging that the Agency discriminated against him on

the bases of sex (male), age (44), and reprisal for prior protected EEO

activity when:

1) In 2003 and 2004, an Area Commander (S1) made ageist comments

about Complainant and used profanity during a staff meeting in 2004;

2) On September 20, 2004, S1 targeted Complainant in a staff meeting

because Complainant was wearing a short-sleeved shirt in violation

of policy;

3) S1 refused to pay Complainant for overtime for work performed

during July 11-17, 2004, for which Complainant eventually received

compensation after a supervisor investigated the issue;

4) In October 2004, S1 made negative comments in Complainant’s

performance review for the time period between October 2003 and September

2004;

5) In October 2004, Complainant was denied restoration of annual

leave, for which Complainant was scheduled, but Complainant was not

permitted to use the leave because management cancelled scheduled leave

due to operational needs;

6) On October 21, 2004, Complainant was reassigned from the North

Atlanta Servicing Area to the Savannah Servicing Area after a supervisor

conducted an investigation into his contract oversight responsibilities

without giving him previous notification about the investigation:

7) On March 18, 2005, S1 provided a report to a lower graded

employee, which contained negative comments concerning a building review

Complainant had just completed;

8) In May 2005, S1 harassed Complainant by talking disparagingly

about him to Contract Managers and continuing to assign him work after

he no longer was assigned in S1’s unit;

9) On January 19, 2006, S1 used profanity in front of Complainant

and his co-workers;

10) On March 11, 2006, S1 did not allow Complainant an opportunity

to work overtime to train other employees;

11) On July 26, 2006, S1 gave him a list of new assignments and

indicated she would hold Complainant accountable - a remark Complainant

considered a threat regarding his performance rating;

12) On July 26, 2006, S1 increased Complainant’s work load;

13) On September 1, 2006, S1 did not select Complainant to be Acting

Commander of his unit;

14) On September 16, 2006, Complainant learned S1 breached the

confidentiality of a previous EEO case when she discussed this case with

a union official;

15) On October 7, 2006, Complainant’s supervisor accused him by

email of failing to make a sick leave request in an appropriate manner

and also of sending his time sheet to an inappropriate person.1

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 (AJ). Complainant

requested that the Agency issue a final decision and the Agency issued

a final decision pursuant to 29 C.F.R. § 1614.110(b).

In its Decision, the Agency found that claims (1) through (6) were

untimely presented for counseling. Specifically, the Agency found

that Complainant initially sought EEO counseling on April 8, 2005,

which was more than 45 days from the time that the events in claims

(1) through (6) occurred. The Agency therefore dismissed claims (1)

through (6) pursuant to 29 C.F.R. § 1614.107(a)(1) for untimely EEO

Counselor contact. The Agency found, however, that these claims serve

as background evidence for the remainder of Complainant’s complaint.

Agency’s Final Decision (Ag Decision), June 21, 2010, at 2; Record on

Appeal (ROA) at 26.

Overtime, Work Assignments, Temporary Promotion

Regarding claims (10) through (13), the Agency observed that these claims

describe discrete acts that stand alone, in addition to being incidents of

Complainant’s claim of overall harassment. The Agency found regarding

overtime (claim (10)), that S1 explained that Complainant was not under

her direct supervision and that the three employees on her staff who did

receive overtime assignments received compensatory time off in lieu of

overtime pay. Ag Decision, at 5. With respect to claims (11) and (12),

S1 explained that fewer staff members were available to inspect buildings,

and accordingly, she assigned additional buildings to Complainant and the

remaining inspectors and that all affected staff members were told they

would be held accountable for their assignments. Id. Regarding claim

(13), the Agency found that Complainant was not appointed to the temporary

position identified, because Complainant had not completed his assigned

inspection duties. Complainant’s co-worker, E1, had completed his

assignments and accordingly, he was appointed to act for four days in

S1’s absence. Id. at 6. The Agency found that Complainant did not

present evidence that the Agency’s reasons for its actions in claims

(10) through (13) were false and a pretext to mask discrimination on

any basis.

Harassment

The Agency found that Complainant failed to show that he was subjected

to a hostile work environment based on his sex, age or in reprisal for

his prior EEO activity as alleged. Specifically, the Agency found that

S1 stated that she did discuss Complainant’s performance with other

supervisors regarding Complainant’s failure to follow the Agency’s

policy regarding pistol qualification of contract employees and regarding

a report of sexual assault at one of the buildings Complainant is assigned

to inspect. The Agency also found that Complainant was correct, that

S1 continued to assign work to Complainant after S1 no longer supervised

him, but that this occurred inadvertently when the Lead Physical Security

Specialist neglected to notify S1 of the new assignments and that the

tasks assigned were collateral to Complainant’s assigned duties.

Id. at 7. Claims (7) and (8).

The Agency considered S1’s admission that the use of profanity in

the workplace, (claim (9)) was not uncommon at the Agency and that

S1 explained that she did not direct her language toward Complainant

directly, nor was she motivated by Complainant’s sex, age, or prior EEO

activity, when she possibly used profanity as Complainant alleged in his

complaint. Additionally, the Agency found that Complainant was assigned

additional buildings to inspect, (claims (11) and (12)), but that his

workload was not disproportionate to that of his co-workers’ workloads,

which also increased under S1’s supervision. Id. Regarding claim

(14), the Agency found that S1 stated that she responded to an inquiry

from a union official, but the Agency found no evidence to support

Complainant’s claim that S1 disclosed Complainant’s EEO activity to

a union official as Complainant alleged. Id.

The Agency found that considering Complainant’s overall claim of

harassment, that Complainant did not show that he was subjected

to unwelcome comments or conduct because of his sex, age, or in

retaliation for his prior EEO activity. Id. at 8. The Decision

concluded that Complainant failed to prove that the Agency subjected

him to discrimination on any basis as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant states that he alleged discrimination on the

bases of race (Black), age and sex.

ANALYSIS AND FINDINGS

As a preliminary matter, the Commission notes that Complainant’s

consolidated complaints are based on sex (male), age (44) and reprisal.

Complainant did not allege discrimination on the basis of race (African

American or Black) in either of his formal complaints. Additionally, the

Commission does not have jurisdiction over claims alleging discrimination

on the basis of non-military background.

Claims 1 – 6

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 a personnel

action, within forty-five (45) days of the effective date of the action.

The Commission has adopted a "reasonable suspicion" standard (as opposed

to a "supportive facts" standard) to determine when the forty-five (45)

day limitation period is triggered. See Howard v. Department of the Navy,

EEOC Request No. 05970852 (February 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.

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.

In the instant case, we find the Agency properly dismissed claims (1)

through (6) pursuant to 29 C.F.R. § 1614.107(a)(2). We find nothing in

the record indicates that Complainant was unaware of the time limitations

for initiating the EEO process or that he was prevented from doing so

for reasons beyond his control. We find these claims were presented for

EEO counseling beyond the 45-day time limit and were properly dismissed.

Claims 7 - 15

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 Constr. 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 U.S. Postal

Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley

v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 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 (2000);

St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t

of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra;

Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

Complainant can establish a prima facie case of reprisal discrimination

by presenting facts that, if unexplained, reasonably give rise to an

inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request

No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in

accordance with the burdens set forth in McDonnell Douglas, Hochstadt

v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324

(D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep’t of

Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant

may establish a prima facie case of reprisal by showing that: (1)

he or she engaged in a protected activity; (2) the agency was aware

of the protected activity; (3) subsequently, he or she was subjected

to adverse treatment by the agency; and (4) a nexus exists between the

protected activity and the adverse treatment. Whitmire v. Dep’t of

the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).

Regarding claims (10) through (13), we find the record on appeal supports

the Agency’s Final Decision. Regarding the incidents in claims (7),

(8), and (9), even if they occurred as Complainant claims, do not rise

to the level of harassment either alone, or in light of the remainder

of the claims in Complainant’s consolidated complaints. We find that

engaging in a report or discussion of Complainant’s performance with

appropriate supervisory officials, consistent with business necessity,

including the overall inspection and security of the facilities to which

Complainant was assigned oversight, falls within the scope of S1’s

responsibilities as Complainant’s supervisor and in her capacity as

Complainant’s prior supervisor. We find S1’s comments regarding

her intent to hold Complainant accountable for his performance to be

an appropriate undertaking, consistent with her duties in the course of

supervising the contract obligations for which she has responsibility.

See, e.g., Electronic Mail Message from C1 to S1, July 11, 2005; ROA

at 623. We further find the record supports the Agency’s finding that

the number of facilities to which Complainant was assigned was comparable

to the assignments of his co-workers. We find no evidence that S1 was

motivated by Complainant’s sex, age, or reprisal when she assigned

additional work or redistributed the inspections to be accomplished, as

well as the overtime or temporary supervisory duties among the inspectors

under her supervision. Affidavit of M1, August 3, 2006 at 10; ROA at 777.

We find, as did the Agency, that Complainant has not shown that S1’s

reasons for her actions were a pretext to mask discrimination.

In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme

Court reaffirmed the holding of Meritor Sav. Bank v. Vinson, 477 U.S. 57,

67 (1986), that harassment is actionable if it is sufficiently severe

or pervasive to alter the conditions of a complainant's employment.

The Court explained that an "objectively hostile or abusive work

environment [is created when] a reasonable person would find [it]

hostile or abusive:” and the complainant subjectively perceives it

as such. Harris, supra at 21-22. Thus, not all claims of harassment

are actionable. Where a complaint does not challenge an agency action or

inaction regarding a specific term, condition or privilege of employment,

a claim of harassment is actionable only if, allegedly, the harassment

to which the complainant has been subjected was sufficiently severe or

pervasive to alter the conditions of the complainant's employment.

With respect to Complainant’s overall claim of harassment, we find

the Agency properly found that Complainant has not established that

the unwelcome conduct to which he was subjected rose to the level of

harassment, or was motivated by discrimination on the bases of sex, age,

or in reprisal for prior protected activity. We find the record confirms

that S1 did use profanity in the workplace, but we find no evidence that

Complainant was the target of S1’s profanity or that such profanity

was motivated by discrimination on the bases of sex, age, or in reprisal

for prior protected activity. We find that Complainant did not establish

that more likely than not that S1 improperly disclosed Complainant’s EEO

activity to a Union official in response to an inquiry regarding a filed

grievance. Lastly, we find that S1’s actions to instruct or correct

Complainant’s conduct with respect to the submission of his leave,

time and attendance paperwork, was within the scope of S1’s obligations

as a member of Complainant’s supervisory chain of command at the time

it occurred. See Affidavit of S2, October 21, 2006 at 11, 12, et seq.;

ROA at 733 et seq. We concur with the Agency that Complainant did not

establish that he was subjected to harassment because of his sex, age,

or in reprisal for his prior EEO activity. Even if we consider untimely

claims (1) (profanity in 2004) and (2) (targeted during 2004 meeting),

we find that Complainant has failed to show he was subjected to a hostile

work environment or that such incidents were motivated by his sex, age,

or in reprisal for his prior EEO activity.

CONCLUSION

We AFFIRM the Agency’s Final Decision.

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

December 8, 2011

__________________

Date

1 The record shows that Complainant’s complaint was amended on several

occasions through November 2006.

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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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