0120080879
06-03-2011
James C. Malloy, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.
James C. Malloy,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120080879
Agency Nos. BEP-05-0046-F; BEP-06-0007-F
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s November 23, 2007 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. For the following
reasons, the Commission AFFIRMS the FAD finding no discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Community Outreach and Special Programs Coordinator in the Office
of Equal Employment Opportunity, Bureau of Resolution Center (BRC) at
the Bureau of Engraving and Printing in Washington, D.C. On February
17, 2005, Complainant filed a formal complaint alleging that the Agency
discriminated against and subjected him to a hostile work environment on
the bases of race (African-American) and in reprisal for prior protected
EEO activity when:
1. His manager assessed his performance on his Employee Performance
Appraisal for the period of October 1, 2003 to September 30, 2004,
as having only “Achieved Standards” in each element; and
2. His manager continued to deny his request for details to other areas.
On April 25, 2006, Complainant filed a second EEO complaint alleging
that the Agency discriminated against him on the bases of race
(African-American) and in reprisal for prior protected activity when:
3. Since March 2004 and continuing, management has failed to promote him,
through accretion of duties, to an ADR/EEO Specialist, GS-13 position
or a Disabilities Program Coordinator, GS-13 position, despite the fact
that since March 2004, he has been assigned and performs the duties of
a Disabilities Program Coordinator;
4. Since January 2006 and continuing, he has not received his performance
appraisal for fiscal year 2005;
5. Since March 2004 and continuing, he has been excluded from any and
all staff meetings; and
6. On March 9, 2006, his request to attend the Federal Dispute Resolution
(FDR) Conference was denied.
At the conclusion of the investigation, the Agency provided Complainant
with copies of the reports of investigation (ROI1 and ROI2) 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. Consequently, the Agency issued a FAD pursuant to 29
C.F.R. § 1614.110(b) addressing both of Complainant’s complaints.
Initially, the FAD assumed arguendo that Complainant had established
a prima facie case of discrimination and a hostile work environment
on the alleged bases and determined that the Agency had articulated
legitimate, nondiscriminatory reasons for its actions. Specifically, as
to claim (1), Complainant’s second-level manager (M2) affirmed that he,
Complainant’s first-level supervisor (S1), and the Supervisory Dispute
Resolution Specialist (S2) conducted quarterly performance assessment
conferences with Complainant and rated his overall performance as
“Achieved.” Further, M2 asserted that the other managers agreed
with Complainant's rating because he was inexperienced, lacked Employee
Assistance Counselor Certification, shared the workload with another
employee, and only performed a limited scope of the duties in the Employee
Assistance Program.
Regarding claim (2), M2 denied that Complainant was denied cross-training
or details and affirmed that Complainant was cross-trained as an Employee
Assistance Counselor and received training in 2003 as a Grief Counselor.
The FAD determined that the record indicated that employees who had been
in the EEO Office prior to M2’s arrival all felt they were treated
differently by M2 than the employees he hired or who were detailed into
the office. The FAD found that it was clear that M2 valued alternative
dispute resolution and hired or detailed people into the office who were
familiar with, trained in, or who could function as dispute resolution
specialists. The FAD concluded that there was no indication that the
treatment was based on race or protected activity, but had more to do
with M2’s vision of the office’s mission and his decision on who
would perform those functions.
As to claim (3), Complainant alleged that he was asked to take on the
duties of the GS-13 Disabilities Program Coordinator in addition to his
Outreach duties after the Disabilities Program duties were reassigned
from Human Resources to the EEO Office in April 2004. Additionally,
Complainant alleged that he was also detailed for more than 120 days to
the position of GS-13 Employee Assistance Counselor. M2 stated that
Complainant was never assigned duties that were above his grade level
and the collateral duties Complainant were assigned were at or below
his grade level and only amounted to about 5% of his time. M2 added
that the disability duties consisted of a one-day program and were a
natural fit with the Outreach Coordinator position.
Regarding claim (4), Complainant stated that in January 2006, M2 had
an EEO Assistant fill out his performance appraisal with “Achieved
Standards” and directed another employee (CW1) who was not his
supervisor to give it to him. Complainant stated that CW1 was not his
supervisor and it was not correct procedure for CW1 to give him his
performance evaluation. M2 affirmed that he was going to be out of the
office for the month of January therefore he prepared Complainant’s
performance evaluation and gave it to CW1 in a sealed envelope to give
to Complainant. In addition, M2 asked CW1 not to discuss the evaluation
with Complainant. M2 asserted that Complainant refused to accept the
evaluation, but it was placed in his Official Personnel File.
As to claim (5), M2 contended that staff meetings were not frequent
and Complainant was invited to all staff meetings. M2 maintained that
project meetings were held with the relevant staff for the project
to discuss work issues. In regard to claim (6), M2 confirmed that he
denied Complainant's request to attend the FDR Conference because the
training was not related to his position responsibilities. M2 added
that at the time it was Agency policy to limit travel and training to
be more cost effective.
Next, the FAD determined that Complainant had not presented any evidence
that the Agency’s reasons were pretextual. In addition, Complainant
failed to show that the Agency’s actions were sufficiently severe or
pervasive to create a discriminatory hostile work environment or that
they were based on Complainant’s protected classes. Accordingly,
the FAD concluded that Complainant had not been discriminated against
or subjected to a hostile work environment as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the ROI is incomplete and is missing
relevant information. Further, Complainant alleges that the Agency’s
reasons are not legitimate and M2 purposely created situations to hide
behind to prevent Complainant from establishing his discrimination
complaint. Additionally, Complainant maintains that the record clearly
shows that M2 discriminated against and subjected him to reprisal and
a hostile work environment.
ANALYSIS AND FINDINGS
Standard of Review
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
(EEO MD-110), at 9-15 (Nov. 9, 1999) (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”).
Disparate Treatment
To prevail in a disparate treatment claims 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). She 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. 23, 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, 143 (2000);
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tx. Dep't of
Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't of
Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997); Pavelka
v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
In the instant case, the Commission finds that the Agency has
articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, as to claim (1), M2 affirmed that Complainant received an
“Achieved” rating because he performed his duties and assignments
at an “Achieved” level. ROI1, at 73. Complainant’s position
description of record is described as an Outreach Coordinator and
the duties performed consistent with this position description were
accomplished in a satisfactory manner. Id. at 74. During a rating
conference with other management officials, each proposing official
agreed that Complainant worked at an “Achieved” level based on
his inexperience, lack of Employee Assistance Counselor certification,
shared workload with another employee, and limited scope of involvement
in the Employee Assistance Program. Id. at 75.
Regarding claim (2), M2 denied that Complainant was denied detail
assignments. M2 maintained that Complainant’s official position is in
the Community Outreach Program and he agreed to accept “other duties
as assigned.” ROI1, at 78. Complainant was also cross-trained in the
area of Employee Assistance Counselor and, in 2003, he received training
as a Grief Counselor. Id.
In regard to claim (3), M2 asserted that Complainant never performed
duties above and beyond his position description. ROI2, at 165.
Complainant was assigned collateral duties that were at or below his
grade level as “other duties assigned.” Id. Nonetheless, M2 added
that Complainant spent approximately 5 percent of his time performing
these collateral duties. Id. M2 confirmed that the Disabilities
Program responsibilities were reassigned from Human Resources to BRC;
however, Complainant assumed the duties to facilitate a once-a-year,
one-day program which was a natural fit for an Outreach Coordinator.
Id. at 166-67. M2 noted that Agency guidelines prohibit assigning
employee duties above their current grade level and that all appropriate
policies were followed. Id. at 168.
Regarding claim (4), M2 maintains that he prepared Complainant’s
performance appraisal and provided it in a sealed envelope to
Complainant’s acting supervisor to deliver while he was out of the
office. ROI2, at 168. Complainant refused to accept the evaluation and
it was placed in his Official Personnel File. Id. In regard to claim
(5), M2 explained that Complainant, along with the entire staff, was
invited to all staff meetings, which were held on an “as necessary”
basis. Id. at 169. Employees working on special projects were involved
in specific project meetings. Id.
As to claim (6), M2 affirmed that all requests to attend conferences,
seminars, and training were required to be job-related and the conference
Complainant wished to attend was not. ROI2, at 171. M2 added that
he encouraged Complainant and all other employees to find job-related
training that did not require travel to be more cost-effective. Id.
The Staff Director concurred that Complainant had no need to attend the
training as it was not related to his position. Id. at 178.
Because the Agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory events, Complainant now bears the burden
of establishing that the Agency's stated reasons are merely a pretext for
discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403
(Dec. 6, 1996). Complainant can do this by showing that the Agency
was motivated by a discriminatory reason. Id. (citing St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502 (1993)). The Commission finds that the record
is devoid of any persuasive evidence that discrimination was a factor
in any of the Agency's actions. At all times, the ultimate burden of
persuasion remains with Complainant to demonstrate by a preponderance
of the evidence that the Agency's reasons were not the real reasons,
and that the Agency acted on the basis of discriminatory animus.
Complainant has failed to carry this burden. Accordingly, the Commission
finds that Complainant has failed to show that he was discriminated
against as alleged.
Hostile Work Environment
The Commission notes that harassment is actionable only if the incidents
to which Complainant has been subjected were “sufficiently severe
or 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
Servs., Inc., 523 U.S. 75, 78 (1998); Cobb v. Dep't of the Treasury, EEOC
Request No. 05970077 (Mar. 13, 1997). To establish a claim of harassment,
Complainant must show that: (1) he is a member of a statutorily protected
class and/or was engaged in prior EEO activity; (2) he was subjected to
unwelcome verbal or physical conduct related to his membership in that
class and/or her prior EEO activity; (3) the harassment complained of
was based on his membership in that class and/or his prior EEO activity;
(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 Roberts v. Dep't of Transp., EEOC
Appeal No. 01970727 (Sept. 15, 2000) (citing Henson v. City of Dundee,
682 F.2d 897 (11th Cir. 1982)). Further, the harasser's conduct is to
be evaluated from the objective viewpoint of a reasonable person in the
victim's circumstances. EEOC Enforcement Guidance on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994).
The Commission concludes that Complainant did not prove that he was
subjected to conduct sufficiently severe or pervasive to create a
hostile work environment and that he also failed to prove that the
Agency’s actions were unlawfully motivated by his protected classes.
Even assuming that the alleged incidents would be sufficiently severe or
pervasive to constitute a hostile work environment, there is no evidence
that the any of the incidents were based on discriminatory animus.
Accordingly, Complainant has not shown that he was subjected to a
discriminatory hostile work environment.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the
Equal Employment Opportunity Commission to AFFIRM the FAD because
the preponderance of the evidence of record does not establish that
discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this
case if the Complainant or the Agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (Nov. 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
June 3, 2011
Date
2
0120080879
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120080879