0120140569
05-20-2016
Kieth L.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kieth L.,1
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Citizenship and Immigration Services),
Agency.
Appeal No. 0120140569
Agency No. HS-CIS-00331-2013
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's September 30, 2013 final decision concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
During the period at issue, Complainant worked as an Immigration Services Officer at the Agency's San Bernardino Field Office in San Bernardino, California.
On February 19, 2013, Complainant filed the instant formal complaint. Therein, Complainant claimed that he was subjected to harassment and a hostile work environment on the bases of race, disability and in reprisal for prior EEO activity when:
1. management placed him on Absent Without Leave (AWOL) status;
2. management served him with a proposed five-day suspension for conduct unbecoming an officer;
3. management failed to award him a bonus for Fiscal Year (FY) 2012;
4. management notified him that his request for Leave Without Pay (LWOP) was denied;
5. management singled him out to restrict access to the building, by informing other employees to not open doors for him;
6. on February 1, 2013, management provided details regarding his five-day suspension (identified in claim 2) to the EEO Counselor who was not privileged to receive the information; and
7. on March 7, 2013, he received a three-day suspension.2
After the investigation of the claims, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision on September 30, 2013, pursuant to 29 C.F.R. � 1614.110(b).
In its September 30, 2013 final decision, the Agency dismissed claim 6 pursuant to 29 C.F.R. � 1614.107(a)(8), on the grounds that its sole claim concerned Complainant's dissatisfaction with the processing of the instant complaint.
The Agency then proceeded to address claims 1 - 7 on the merits (including claim 6), finding no discrimination. The Agency found that Complainant did not show by a preponderance of the evidence that he was discriminated against on the bases of race, disability and retaliation. The Agency further concluded that Complainant did not prove, by a preponderance of the evidence, that the Agency's proffered reasons for its actions were a pretext for discrimination.
Regarding Complainant's harassment claim, the Agency found that the evidence of record did not establish that Complainant was subjected to harassment based on race, disability and retaliation. Specifically, the Agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
The instant appeal followed.
ANALYSIS AND FINDINGS
Disparate Treatment
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Agency management articulated legitimate, nondiscriminatory reasons for its actions. Regarding claim 1, the Field Office Director, also Complainant's third line supervisor, stated that on November 12, 2012, she placed Complainant on an AWOL status based on his refusal to submit the requested medical documentation to justify his LWOP requests.
Regarding claim 2, the third line supervisor stated that she proposed that Complainant be suspended for five days for conduct unbecoming an officer. Specifically, the third line supervisor stated "an accredited representative who assists applicants seeking benefits filed a complaint stating that Complainant was referring Agency clients to his postal annex business. Evidence showed the Complainant had instructed two of the applicants that he had interviewed to go to his place of business to drop off documents. This complaint was referred to OSI (Office of Security and Integrity), which conducted an investigation and concluded the Complainant had committed the act alleged and had also done the same thing with another applicant."
Further the third line supervisor stated that after she received the investigative report from OSI, she consulted with the Labor and Employee Relations Section and Agency Counsel on what action she should take. The third line supervisor stated that based on the advice she received from the parties, she decided to propose a five-day suspension. The third line supervisor stated that Complainant's race, disability and prior protected activity had no bearing on the proposed suspension "which was based strictly on the findings in OSI investigation report establishing his improper conduct."
Regarding claim 3, Complainant's second line supervisor stated that she gave Complainant a rating of "Exceeds Expectations" in 2011 "when I was his first-line supervisor. I put him in for a time-off award of 40 hours based on his preference for a time-off award rather than a cash award and he received that award. He received a rating of 'Exceeds Expectations' in 2012 at a time when [Complainant's supervisor] was his immediate supervisor."
Complainant's first line supervisor stated that he did not recommend Complainant "for an award because he did what he believed he should do, he did not do anything extra or help us out with by taking additional interviews when we were in a bid. I completed the evaluation and forwarded it without a recommendation. [Complainant] was not available to sign it since he had not been in the office in July 2012."
Regarding claim 4, the Field Office Director, also Complainant's third line supervisor stated that in July 2012, she granted Complainant's LWOP request from July 2012 to September 2012 "even though he had not requested leave in advance as required. He had a very small amount of annual leave and sick leave that he used up in the first week and needed LWOP for the remainder of the time he wanted to take off. He claimed the LWOP was medically necessary but the medical documentation he provided did not include information that he was incapable of working. The medical documentation was signed by a doctor, so on this occasion I went ahead and granted the request."
Further, the third line supervisor stated that Complainant then requested additional two months of LWOP from September 2012 through November 2012.3 The third line supervisor stated that Agency management directed Complainant to provide additional documentation on his medical condition to justify his request which he did. The third line supervisor further stated "I recall the Complainant then filed a third request asking for LWOP into December 2012 based on his medical condition. He and I went back and forth on this request during the month of November. At one point I sent him an overnight letter, to which he responded by email indicating that he was 'out of the country and on a boat' and not able at that point to provide the particular documentation that I had asked for. He had run into an employee from the San Bernardino Field Office on this 'boat,' which I later learned was a cruise ship...when I learned the Complainant was on a cruise, I thought to myself that his LWOP was granted due to a serious medical condition and yet, he was on a cruise, on a vacation. Nevertheless I was prepared to go forward if he would provide the medical documentation I requested by the date I requested which was November 30."
The third line supervisor stated that Complainant did not provide the requested documentation until sometime in December 2012. The third line supervisor stated while Complainant claimed he had a right to LWOP under the Executive Order 5396, she advised him that LWOP was still available to him under the FMLA. Complainant declined to invoke the FMLA and the third line supervisor denied his LWOP request.
Regarding claim 5, Complainant claimed that he was harassed when Agency management informed employees not to open any doors for him because they did not know his state of mind. Complainant referred to a named Immigration Services Officer (ISO)'s email dated August 23, 2012 that was sent to one of his co-workers which supported his argument that management had warned employees about his state of mind. The third line supervisor stated that she received a copy of the ISO's emailed dated August 23, 2012 titled "Concern for Safety" to a named co-worker. The third line supervisor stated "I never told [ISO] or any other employee who did not have a need to know about the Complainant's medical condition or that he was suffering from stress. I never breached the confidentiality of the Complainant's medical information that was provided to management...to my knowledge the Complainant was not a danger to others, and there was no reason to deny his access to the office."
Regarding claim 6, Complainant alleged that his third line supervisor provided details regarding his five-day suspension to the EEO Counselor who was not privileged to receive the information. The record reflects that in the EEO Counselor's Report, the EEO Counselor stated that as a result of OSI investigation, the third line supervisor stated that she proposed that Complainant be suspended for conduct unbecoming an official which was pending at the time. The record further reflects that the information on the proposed suspension is part of Complainant's overall complaint.
Regarding claim 7, Complainant's fourth line supervisor stated that she was the deciding official to suspend Complainant for three days instead of the proposed five day suspension. Specifically, the fourth line supervisor stated "as Deciding Office I decided to mitigate the proposed five-day suspension down to three days. I thought that three days was more appropriate for the charge since the Complainant had no prior disciplinary actions. I discussed this subject with Agency counsel, who supported my decision.
Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Hostile Work Environment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
To prove his harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of his protected basis -- in this case, race, disability, and retaliation. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Here, the evidence simply does not establish that the incidents alleged by Complainant occurred because of his race, disability, and prior protected activity.
Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.4
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
May 20, 2016
__________________
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.
2 The record reflects that claim 7 was later amended to the instant formal complaint.
3 The record reflects that in her affidavit, the third line supervisor inadvertently identified the date of Complainant's additional LWOP request as September 2011 through November 2012 instead of September 2012 through November 2012.
4 Because we affirm the Agency's finding of no discrimination concerning claim 6 for the reason stated herein, we find it unnecessary to address alternative dismissal grounds (i.e. dissatisfaction with the processing of the instant complaint). However, we note that the Commission has previously stated that it is appropriate, and indeed mandatory, for an Agency official to give accurate and complete statements to an EEO Counselor regarding an act of alleged discrimination. See e.g., Wesley v. USPS, EEOC Appeal No. 01943748 (October 6, 1994); request to reconsider denied, EEOC Request No. 05950079 (June 15, 1995).
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