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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