0120131465
10-22-2015
Judson P.,1 Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Judson P.,1
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120131465
Agency No. RD-2012-00055
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's February 11, 2013, final 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. For the reasons stated below, the Agency's FAD which found that Complainant did not demonstrate that he was subjected to discrimination and/or harassment is AFFIRMED.
ISSUE PRESENTED
The issue presented is whether the Agency properly found that Complainant was not subjected to harassment or discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Customer Service Representative, GS-7 at the Agency's Customer Services Branch in St. Louis, Missouri. On September 9, 2011, Complainant called his supervisor (S1) to inform her that he would not be arriving at work until 1:00 p.m., because he had experienced a migraine headache that morning. When he arrived at work, S1 noticed that he had not made himself available for calls by 1:06 p.m. She believed that he was taking lunch and therefore she instant messaged (IM) him to ask about the delay. They exchanged several IMs and thereafter Complainant asked if he could go to the nurse's office because as a result of S1's repeated IMs he could feel his blood pressure rising. S1 told him that he could go but he would have to take leave. Complainant did not go to the nurse. Complainant believed that S1 denied his request to go to the nurse because he had previously filed an EEO complaint that involved her. The complaint had subsequently been withdrawn by Complainant. On October 3, 2011, Complainant maintained that he was charged 15 minutes of LWOP after he had already gotten approval to take four hours of sick leave and four hours of annual leave.
On May 4, 2012, Complainant filed a formal complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On September 9, 2011, after he complained about feeling his blood pressure rise and requesting to visit the nurse, his supervisor, knowing that he had insufficient leave, told him that he should have stayed home if he was sick and that he would have to use his personal time or take leave if he wanted to visit the nurse; and
2. On October 3, 2011, his supervisor charged him 15 minutes of Leave Without Pay (LWOP)
Following an investigation by the Agency, Complainant requested a FAD. The FAD found that Complainant failed to demonstrate that he was subjected to discrimination and/or harassment. Specifically, the FAD found that assuming, arguendo, Complainant established a prima facie case of reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions, i.e., Complainant was told that he could go to the nurse but that he would have to take leave pursuant to Agency's regulations. S1 explained that employees were allowed one hour of administrative time to go to the nurse if they got injured or ill at work. If however, they wanted to go to the nurse to get aspirin or blood pressure checks an employee was required to take personal leave. As Complainant was requesting a blood pressure check he was told that pursuant to regulations, he could go to the nurse but he would have to take leave. S1 maintained that Complainant's prior EEO activity had nothing to do with what she told him about visiting the nurse.
Further, S1 explained that on October 3, 2011, Complainant was not charged 15 minutes of LWOP. She maintained that he had been approved leave for that day and therefore could not have been charged LWOP. On October 4, 2011, however, S1 explained that Complainant was charged 15 minutes of LWOP because after he used the 8 hours leave on October 3rd, he unexpectedly needed to take an hour of leave on the 4th but he only had 45 minutes of remaining leave so he was charged 15 minutes LWOP. The FAD found that Complainant failed to show that the Agency's reasons were pretext for discrimination.
With respect to Complainant's allegation that he was subjected to harassment and a hostile work environment, management explained that the incidents Complainant complained of were work related matters that were not severe or pervasive enough to establish a hostile work environment.
CONTENTIONS ON APPEAL
Neither Complainant nor the Agency provided an appeal brief.
ANALYSIS AND FINDINGS
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 Agency's final decision. Like the Agency, we find that even if we were to assume that Complainant established a prima facie case of reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that with regard to going to the nurse Complainant was told to take leave pursuant to the Agency's regulation regarding visiting the nurse for certain matters. With regard to issue 2, management explained that Complainant was not charged 15 minutes of LWOP on October 3, 2011, as he was approved for both sick and annual leave that day. He was, however, charged 15 minutes of LWOP for the following day - when he needed to take an hour of leave but only had 45 minutes available. Therefore, he was charged LWOP. We find the evidence in the record regarding Complainant's time and attendance supports management's explanation.
Finally, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant did not establish his claim of a hostile work environment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant did not establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
Accordingly, the Agency's FAD finding no discrimination and/or harassment is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton 's signature
Carlton M. Hadden, Director
Office of Federal Operations
__10/22/15________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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