0120102977
12-02-2010
John M. Jennings, Complainant, v. Hilda L. Solis, Secretary, Department of Labor, Agency.
John M. Jennings,
Complainant,
v.
Hilda L. Solis,
Secretary,
Department of Labor,
Agency.
Appeal No. 0120102977
Hearing No. 530-2010-00157X
Agency No. CRC-09-03-055
DECISION
On July 10, 2010, Complainant filed an appeal from the June 25, 2010,
final Agency 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., Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 et seq. The Commission deems the appeal timely and
accepts it pursuant to 29 C.F.R. § 1614.405(a). For the following
reasons, the Commission AFFIRMS the FAD.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Workers' Compensation Claims Examiner at the Agency’s Office
of Workers’ Compensation Programs, District Office in Philadelphia,
Pennsylvania. On April 15, 2009, and by amendment on July 28, 2009,
Complainant filed an EEO complaint alleging that the Agency discriminated
against and subjected him to hostile work environment on the bases of race
(Caucasian), religion (Catholic), disability (ankle injury, eye condition
with associated headaches, skin condition and carpal tunnel syndrome),
age (43), sexual orientation1, and in reprisal for prior protected EEO
activity when:
1. He was denied a step/grade increase from GS-11 Step 4 to Step 5 and
to GS-12 Step 1;
2. He was denied an annual performance bonus that was given to co-workers
in November 2008;
3. The submission of his work-related carpal tunnel syndrome claim was
delayed for more than 60 days;
4. Software that was received as a medical accommodation for his carpal
tunnel syndrome was removed from his work space the day after it was
delivered on or about March 4, 2009;
5. He was alleged to have submitted a CD-ROM in December 2008 which
included eight violations although Complainant had reviewed and found
to have no violations prior to submission;
6. He was ordered to print out 2,000 sheets of paper for a Privacy Act
case after not being told to do so on prior cases;
7. On or about March 12, 2009, work that was due was removed, along with
forms used daily, from his desk;
8. A claims examiner, whose work Complainant believed was of an inferior
quality, was assigned to review his cases for his performance appraisal;
9. On March 31, 2009, Complainant was informed that he was failing two
critical elements during his mid-year performance appraisal;
10. The Agency refused to release information that resulted in the
failure of his mid-year performance appraisal;
11. Complainant was harassed about leaving training early;
12. Complainant was harassed about leaving his computer screen unlocked;
13. Deadlines and/or holding assignments were changed and changes to
his assignments were requested on the day of the deadline and/or after
the deadline had passed;
14. Complainant was harassed by email to point out how far behind he
was in processing his digit range;
15. Other employees were used to assist more experienced examiners while
making numerous requests of Complainant, many of which were difficult
and time consuming;
16. Complainant was required to send his payment assignments to claims
examiners who were unhappy to have to review the assignments;
17. He was assigned a co-worker to review his cases, causing the co-worker
to feel resentment towards him;
18. He was assigned numerous frivolous assignments after an EEO Counselor
had conversations with his supervisors;
19. He and co-workers were directed to not make negative comments about
team members in claim files or internal communication, only to discover
that negative remarks about him were included in claim files;
20. He was directed to not use official time to email the Secretary
of Labor or Deputy Director of the Officer of Workers’ Compensation
Programs (OWCP);
21. He was left in an undetermined status for 60 days after his
Performance Improvement Plan (PIP) concluded on February 10, 2009;
22. His access to Agency systems was removed;
23. He was given a Notice of Proposed Removal on May 7, 2009; and,
24. He was removed from federal service on July 24, 2009.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation (ROI) 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).
At the outset, the FAD determined that Complainant had filed an appeal
with the Merit Systems Protection Board (MSPB) concerning claims (23)
and (24). The MSPB accepted jurisdiction and issued a decision in favor
of the Agency. Accordingly, the FAD dismissed claims (23) and (24)
pursuant to 29 C.F.R. § 1614.107(a)(4). Additionally, the FAD found
that Complainant’s complaint included an additional allegation that his
union representative was subjected to harassment following grievance and
performance meetings with management. The Agency dismissed this claim
for failing to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1).
The FAD determined that the dismissal was proper.
Next, the FAD analyzed the alleged harassing incidents under a disparate
treatment analysis. First, the FAD concluded that Complainant had
established a prima facie case of discrimination on the alleged
bases. The FAD determined, however, that the Agency articulated
legitimate, nondiscriminatory reasons for its actions. As to claim
(1), Complainant’s supervisor (S1) asserted that Complainant did not
receive a step/grade increase due to his poor performance. Further,
Complainant was placed on a PIP to address the performance issues. As to
claim (2), S1 affirmed that annual performance bonuses were given to
employees with an "Effective" or higher rating and that Complainant’s
performance did not warrant a bonus. With respect to claim (3), S1
explained that when Complainant submitted his claim, he was no longer
employed with the Agency. The Agency’s National Office requested
that the claim be submitted electronically, but this could not be done
due to Complainant’s employment status. S1 maintains that not filing
electronically delayed the process, but did not affect Complainant’s
benefits.
Regarding claim (4), S1 stated that Complainant received the accommodation
software and had it in his possession at his workspace. The District
Director (DD) claimed that Complainant admitted that he did not securely
store the software. Both S1 and DD denied taking the software. As to
claim (5), DD contended that Complainant failed to comply with the
procedures to ensure that the submitted CD was Privacy Act-compliant.
DD adds that when he reviewed the CD, there were eight errors on the
CD, and without his intervention, Complainant would have released it
even though it contained another claimant's name, claim number, date of
birth, medical condition, and social security number. As to claim (6),
S1 maintains that he was not a supervisor at the time of this incident
and would not have had the authority to order Complainant to print out
2,000 sheets for a Privacy Act case. Further, even if he did, it would
have only required Complainant to push one button to being copying.
With respect to claim (7), S1 and DD denied removing any items from
Complainant’s desk. As to claim (8), S1 denies that Claims Examiner
1 (CE1) was assigned to review Complainant’s work. The FAD found
that there was no evidence that any co-worker provided a review of
Complainant’s work to management. As to claim (9), S1 claimed that
there was no mid-year appraisal on March 31, 2009, and after the PIP
concluded, he informed Complainant that he continued to fail the two
elements that were the subject of the PIP. Regarding claim (10),
S1 stated that Complainant was given detailed reports numerous times
including case numbers and everything else needed so that he could
clearly understand the shortcomings of his work and what improvements
were needed. Further, DD contended that that Complainant was provided
with continuous feedback via copies of the supervisory assignments and
almost daily verbal discussions that Complainant confirmed occurred.
Regarding claim (11), S1 claimed that he asked Complainant to explain
what happened after the class instructor informed S1 that Complainant
had left early. S1 stated that Complainant later informed him that the
class was over, but could not explain why he returned to the classroom
looking for others and did not take his class materials if he believed
the class was over. As to claim (12), S1 affirmed that Complainant
was reminded more than once to lock his computer screen before leaving
his workstation. Further, S1 added that all employees were required
to take a computer security class which included instructions regarding
locking their computer screens. As to claim (13), S1 averred that there
were no delays in reviewing Complainant's work; rather, Complainant’s
work product required additional revisions as it was normally confusing
and incorrect. S1 confirms that he changed the deadlines for everyone to
provide their drafts on the 12th day to allow him time to edit the drafts
and meet the program requirement of a 14 day deadline. S1 states that
as a supervisor, he had the responsibility to review, edit, and ensure
that the examiners’ work product was submitted correct and timely.
Regarding claim (14), S1 denied harassing Complainant about late work;
instead, he would send emails to Complainant and others so that their
work was timely.
As to claim (15), S1 affirmed that Complainant did not receive frivolous
information requests or assignments or that any of his assignments
were any more difficult than those assigned to other GS-11 claims
examiners. In fact, S1 maintains that work was assigned based on the
last three digits of the case file number. With regard to claim (16),
S1 confirmed that Complainant found many cases complex because he did
not have a good grasp of the work. Further, during the PIP period,
only the senior examiners reviewed Complainant's cases so that he could
have a better knowledge of Complainant's progress. As to claim (17),
S1 stated that Complainant retained a specific law firm which also
represented claimants before the Agency. When Complainant notified
the Agency of his intention to hire the law firm, any case represented
by that firm was reassigned to CE1. Both S1 and CE1 denied that CE1
reviewed any of Complainant’s cases.
With regard to claim (18), S1 indicated that none of the work assigned
to Complainant had anything to do with the contact by the EEO Counselor.
He explained that as the supervisor, it was his obligation to review the
work and make assignments to meet the office and program goals. He added
that Complainant had to be reminded of overdue cases, but did not receive
any extra work. As to claim (19), DD confirmed that he advised all office
members to avoid making verbal or written comments about office members'
personal affairs or claims actions that divulged personal information in
claim files. He avowed that he had no recollection of making a remark
about Complainant in a claimant’s file that would have violated this
policy. S1 also denied making any negative comments. Regarding claim
(20), DD indicated that the amount of official time an employee can use
is specified in the union management contract and Agency regulations.
He averred that based on the time of Complainant’s emails, it was
determined that he was creating those emails during official work time.
He averred that he reminded Complainant that such activity must be done
during his break and lunch times.
As to claim (21), S1 indicated that the additional time was spent making
sure that all of the data collected about Complainant’s performance
was accurate. He told Complainant that he failed at the end of the PIP
period based on his notes and reports. Finally, regarding claim (22),
DD explained that computer security procedures require that employees
may only have access to computer systems needed to perform their work
assignments. DD averred that once the Notice of Proposed Removal was
issued, Complainant was assigned to Privacy Act responses only and his
access to the Agency systems was restricted to only those programs needed
to perform his work. At the conclusion of the PIP period, Complainant had
three months with full access to Agency systems and had “read-only”
capability to the Agency’s systems until the date of his removal.
The FAD concluded that Complainant had not proffered any evidence
demonstrating that the reasons articulated by the Agency were pretextual.
Accordingly, the FAD found that Complainant failed to prove that the
Agency subjected him to discrimination as alleged. As to Complainant’s
hostile work environment claim, the FAD determined that there was nothing
in the record indicating that the alleged incidents were based on his
membership in the protected classes. Further, the alleged incidents
were not sufficiently severe or pervasive to rise to the level of a
discriminatory hostile work environment. Consequently, the FAD found
that Complainant had also not been subjected to a discriminatory hostile
work environment as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant states that the FAD only considered the evidence
provided by the Agency and discounted his testimony and the testimony of
other witnesses. As a result, Complainant requests that the Commission
reverse the FAD. The Agency requests that the Commission affirm the FAD.
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”).
Procedural Dismissals
As an initial matter, the Commission shall address the FAD’s procedural
dismissal of portions of Complainant’s complaint. The Commission finds
that the FAD’s dismissal of Complainant’s allegation regarding his
union representative being subjected to harassment following grievance
and performance meetings with management. Complainant lacks standing to
raise a claim regarding her representative being subjected to harassment.
A claim made by an individual must be made by the complainant filing the
complaint. Accordingly, the Commission finds that the Agency properly
dismissed this claim for failure to state a claim pursuant to 29 C.F.R. §
1614.107(a)(1).
As to claims (23) and (24), the Commission notes that a mixed case
complaint is a complaint of employment discrimination filed with a federal
agency, related to or stemming from an action that can be appealed to
the MSPB. 29 C.F.R. § 1614.302(a)(1). An aggrieved person may initially
file a mixed case complaint with an agency or may file a mixed case appeal
directly with the MSPB, pursuant to 5 C.F.R. § 1201.151, but not both.
29 C.F.R. § 1614.302(b). 29 C.F.R. § 1614.107(a)(4) provides that an
agency shall dismiss a complaint where the complainant has raised the
matter in an appeal to the MSPB and 29 C.F.R. § 1614.302 indicates that
the complainant has elected to pursue the non - EEO process.
The Commission finds that the Agency properly dismissed claims (23) and
(24) on the grounds that Complainant previously raised the issue of his
removal in an appeal with the MSPB. The record contains a copy of an
Initial Decision from the MSPB for Docket No. PH-0432-10-0139-1-1 dated
April 14, 2010.2 The Commission further notes that the record indicates
that Complainant was informed that if he believed his removal was based,
in whole or in part, on discrimination, he had the option of filing an
appeal with the MSPB or an EEO complaint, but not both. Accordingly,
the Commission affirms the FAD’s dismissal of claims (23) and (24).
Disparate Treatment
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, 120 S.Ct. 2097
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
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 shall assume arguendo that Complainant
is an individual with a disability pursuant to the Rehabilitation Act, and
that he has otherwise established a prima facie case of discrimination on
the alleged bases. Nonetheless, the Commission concludes that the Agency
has articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, as to claim (1), S1 affirms that Complainant did not
receive a step/grade increase because of his poor performance. ROI,
S1’s Aff., at 3. Further, S1 states that informal methods to address
his poor performance were not successful and Complainant was placed on a
PIP to address the performance issues. Id. at 4. Ultimately, Complainant
did not receive a within grade increase or a promotion because he failed
the PIP and was removed from service. Id. In regard to claim (2), S1
confirms that Complainant did not receive an annual performance bonus
because his performance did not warrant a bonus. Id. S1 maintains
that annual performance bonuses were only given to employees with an
"Effective" or higher rating and Complainant was on a PIP while failing
two critical elements. Id.
As to claim (3), S1 explains that Complainant’s Notice of Injury was
sent to him in early September 2008 and followed the Agency’s procedures
by submitting the necessary documents to the Agency’s Regional Office.
ROI, S1’s Aff., at 4. The National Office wanted the claim to be filed
electronically; however, that could not be completed because Complainant
was no longer employed with the Agency at the time he submitted the forms.
Id. at 5. S1 contends that not filing electronically delayed the process,
but did not damage Complainant’s eligibility for benefits in any way.
Id. In regard to claim (4), S1 asserts that Complainant informed him
that the medical accommodation software was missing after he had left
it on his desk rather than locked up at his workstation. Id. S1 denies
removing the software and states that Complainant enlisted a co-worker to
help him search his workstation; however they did not find the software.
Id. at 5-6.
Concerning claim (5), DD explains that all Claims Examiners are
responsible for the Privacy Act requests received in their assigned
workload. ROI, DD’s Aff., at 7. If the Claims Examiner finds errors,
it is his responsibility to remove or delete the incorrect documents
prior to sending the responses to DD for review, sign, and release. Id.
In reviewing his records, DD found that Complainant failed to comply with
these procedures a number of times. Id. When he notified Complainant
of his findings by email and during a meeting the next morning,
Complainant did not claim that the file was without violations. Id.
Finally, without DD’s intervention, Complainant would have released
eight violations to a requesting attorney. Id. DD adds that he did
not alter the CD and the CDs are computer generated as mirror copies of
the documents in the electronic claim file. Id. Regarding claim (6),
S1 asserts that he has no knowledge of the alleged incident; however,
in most cases, files can be easily copied by printing out documents kept
in the Agency’s computer system. ROI, S1’s Aff., at 6. Furthermore,
the employee Complainant claims ordered him to print out the documents is
not a supervisor and would have no authority to order anyone to perform
a task. Id.
As to claim (7), S1 denies removing any papers from Complainant’s desk.
ROI, S1’s Aff., at 7. Further, S1 claims that when Complainant alleged
that papers were missing from his desk, he never specified what type of
papers were missing. Id. Furthermore, Complainant often had copies of
documents from files that could easily be reproduced simply by selecting
and printing the document; however, he never told Complainant to redo
the missing work. Id. Regarding claim (8), S1 avows that CE1 was
never assigned to review Complainant’s work. Id. at 8. Additionally,
CE1 denies ever reviewing Complainant’s work. ROI, CE1’s Aff., at 3.
In regard to claim (9), S1 avers that there was no mid-year appraisal on
March 31, 2009; however, he completed a mid-term progress review with
Complainant on April 22, 2008. ROI, S1’s Aff., at 9. S1 denies
specifically telling Complainant that he was failing two critical
elements, but did tell him he was having difficulty in all five of his
critical elements. Id. S1 based his assessment on his overall review of
Complainant’s work and the management information system reports. Id.
When the PIP concluded, in February 2009, S1 informed Complainant that he
continued to fail the two elements that were the subject of the PIP. Id.
As to claim (10), S1 denies that the Agency refused to release information
to Complainant; rather, S1 states that Complainant was given detailed
information on his performance numerous times. Id. at 10. Further,
Complainant was provided detailed reports including case numbers and
everything he needed to clearly understand the shortcomings of his work
and what he needed to do to improve. Id.
As to claim (11), S1 affirms that he was not at the training, but was
informed by the instructor that Complainant indicated that he was going
to the restroom but returned much later with food and drink. ROI, S1’s
Aff., at 11. Complainant later stated to S1 that the class was over,
but he could not explain why he stayed away for an extended period and
why he did not take his materials if he thought the training was over.
Id. As to claim (12), S1 confirms that every employee was required to
complete a computer security class which instructed them to lock their
computer screens when leaving their workstation. Id. S1 simply reminded
Complainant more than once that leaving the screen unlocked is a security
violation and Complainant ignored this requirement. Id. As to claim
(13), S1 asserts that claims examiners were given a 14-day deadline
to turn in their work product. Id. at 12. In addition, S1 directed
the examiners to provide their drafts on the 12th day to allow time
for editing. Id. Complainant was the only employee who did not follow
that instruction and continued to turning in work at the deadline. Id.
Consequently, Complainant’s work product would require additional
revisions by S1 since it was normally confusing and incorrect and that
delayed putting his work into the system. Id.
As to claim (14), S1 states that he did send emails to remind Complainant,
as well as others, so they would not be late with their work. ROI,
S1’s Aff., at 13. Further, deadlines were only changed if the claims
examiner requested an extension and S1 was able to extend the deadline.
Id. Additionally, S1 maintains that Complainant was given credit for
his work when it was completed correctly. Id. Concerning claim (15),
S1 denies that Complainant was given more difficult work than any other
claims examiners. ROI, S1’s Aff., at 14. S1 affirms that work in the
unit was assigned based on the last three digits of the casefile number.
Id. In regard to claim (16), S1 claims that five claims examiners and two
senior examiners certified payments for all the examiners in the unit.
ROI, S1’s Aff., at 15. During Complainant’s PIP period, only the
senior examiners reviewed Complainant’s payments so that S1 could
have better knowledge of Complainant’s progress. Id. The senior
examiners’ review of Complainant’s cases was not very intense;
rather, they pointed out errors in Complainant’s work. Id.
As to claim (17), S1 denies that CE1 was requested to review
Complainant’s work; rather, some of Complainant’s cases were
reassigned to avoid conflicts of interest regarding a law firm that
previously represented Complainant. ROI, S1’s Aff., at 16. S1 claims
that the only reason he could think of as to why CE1 would resent
Complainant was that she was reassigned a number of Complainant’s cases
while nothing was initially done to balance out the work assignments. Id.
S1 contends that after this was realized, the caseload was adjusted. Id.
CE1 adds that the caseload did not cause her to resent Complainant. ROI,
CE1’s Aff., at 3. Regarding claim (18), S1 denies assigning Complainant
any frivolous assignments or that his assignments had anything to do with
his protected EEO activity. ROI, S1’s Aff., at 17. S1 adds that on
many occasions, Complainant did not respect the importance of meeting
the Agency’s goals and needed DD to order him to complete a task. Id.
S1 reminded Complainant of his overdue cases, but did not assign him
extra work compared to the other claims examiners. Id.
Concerning claim (19), S1 affirms that DD directed everyone during an
office meeting not to write negative or personal things about co-workers
in claims files and not to include internal communication in the files;
however, S1 was not aware of any negative remarks made about Complainant.
ROI, S1’s Aff., at 19. DD confirms that he made the directive and
affirms that followed the policy. ROI, DD’s Aff., at 11. DD claims he
has no recollection of making a remark about Complainant in a claimant’s
file that would have violated this policy. Id. As to claim (20), DD
confirms that he advised Complainant not to use work or official time to
email the Secretary of Labor or the Deputy Director of the OWCP during
official work hours. ROI, DD’s Aff., at 12. DD adds that the proper
time when an employee for such activities is specified in the collective
bargaining agreement and the Agency’s regulations. Id.
Regarding claim (21), S1 affirms that 60 days passed after the end of
Complainant’s PIP and he used the additional time to make sure that
all the date he had collected about Complainant’s performance was
accurate. ROI, S1’s Aff., at 19. The extra time was taken to ensure
that the percentages were accurate and Complainant was informed that
he failed based on S1’s notes and reports. Id. With regard to claim
(22), DD affirms that after Complainant was issued a Notice of Proposed
Removal, he was assigned to the duty of preparing Privacy Act responses
only and his access to certain Agency systems was restricted to only
those programs needed to perform this work. ROI, DD’s Aff., at 13.
Further, for privacy and computer security reasons, employees’ access
to computer systems is limited to those systems necessary to perform
their assigned duties. Id.
Finally, as to claims (23) and (24), S1 affirms that he issued Complainant
the Notice of Proposed Removal on May 7, 2009. ROI, S1’s Aff., at 20.
The Notice of Proposed Removal stated that Complainant was being removed
after Complainant’s performance remained unacceptable after being placed
on the PIP. ROI, Ex. 31. Further, the Notice included 22 specifications
indicating Complainant’s deficiencies including failure to timely
complete priority assignments and untimely payments to claimants. Id.
Because the Agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory event, 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)). Aside from Complainant’s bare
assertions, the record is devoid of any 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 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 of an employee that would not
occur but for the employee’s race, color, sex, national origin,
age, disability, religion or prior EEO activity is unlawful, if it is
sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC
Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d
1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris
v. Forklift Sys., Inc. at 3, 9 (March 8, 1994). In determining that a
working environment is hostile, factors to consider are the frequency
of the alleged discriminatory conduct, its severity, whether it is
physically threatening or humiliating, and if it unreasonably interferes
with an employee's work performance. See Harris v. Forklift Sys., Inc.,
510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court
has stated that: “Conduct that is not severe or pervasive enough to
create an objectively hostile work environment - an environment that a
reasonable person would find hostile or abusive - is beyond Title VII's
purview.” Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile environment harassment, Complainant
must show that: (1) he belongs to a 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 his statutorily protected class; (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; and (5) there is a
basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897
(11th Cir. 1982). The harasser's conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim's circumstances.
Enforcement Guidance at 6.
After a review of the record, the Commission finds that the incidents
alleged do not constitute discriminatory harassment. 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 persuasive evidence that any of them
were motivated by discriminatory animus. Accordingly, Complainant has not
shown that he was subjected to a discriminatory hostile work environment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, the Commission AFFIRMS
the FAD.
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
December 2, 2010
Date
1 We note that the statutes over which the Commission has jurisdiction
do not include sexual orientation as a prohibited basis of discrimination.
2 The Initial Decision reflects that the MSPB Administrative Judge
affirmed the Agency’s action.
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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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