0120171348
08-23-2018
Stacy M.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Stacy M.,1
Complainant,
v.
Sonny Perdue,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 0120171348
Hearing No. 540201400163X
Agency No. FS201300848
DECISION
On February 24, 2017, Complainant timely appealed, pursuant to 29 C.F.R. � 1614.403, from the Agency's March 1, 2017 Final Order concerning an 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 Section 501 of the Rehabilitation Act of 1973 ("Rehabilitation Act"), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Human Resources Specialist, GS-11, Human Resources Management ("HRM"), at the Agency's Albuquerque Service Center ("ASC") located in Albuquerque, New Mexico.
On December 11, 2013, Complainant filed an EEO complaint alleging discrimination by the Agency on the bases of race (African-American), national origin (Nigerian), color (black), disability (chronic arthritis, celiac disease) and reprisal (for prior protected activity) when:
1. On July 19, 2013, he was issued a Letter of Warning ("LOW"), and
2. On various dates, he was subjected to additional incidents of harassment such as:2
b. On June 28, 2013, an unidentified person removed his unattended cell phone, which was charging on his office desk, took pictures of "apes of different kinds," and then returned the phone to his desk,
c. On July 2, 2013, and other unspecified dates, while his car was parked in an Agency parking lot, an unidentified person or persons affixed chewing gum to his car door,3 and,
e. On August 27, 2013, he discovered that his locked lunch bag had been tampered with.
After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation ("ROI") and notice of right to request a hearing before an Equal Employment Opportunity Commission ("EEOC" or "Commission") Administrative Judge ("AJ"). Complainant timely requested a hearing. On August 3, 2015, the Agency submitted a motion for a decision without a hearing. Over Complainant's objection, the AJ subsequently issued a decision by summary judgment in favor of the Agency on January 13, 2017. The record provides the following facts:
Complainant's first level supervisor from September 2011 through her retirement in July 2013 was the Branch Chief of Policy ("BC1") (bases not provided). Beginning August 2013, Complainant reported to her successor ("BC2") (Pacific Islander, brown, American, disability status and EEO activity not specified). Throughout the relevant time frame, Complainant's second level supervisor ("S2") was the Assistant Director of Centralized Operations and Policy (Caucasian, brown, American, disability status and EEO activity not specified). BC1 and S2 were the named responsible management officials in Complainant's complaint.
Letter of Warning ("LOW")
On July 19, 2013, BC1 issued Complainant a Letter of Warning ("LOW") for unacceptable conduct during a May 29, 2013 conference call.4 The topic of the call was a term appointment request, made by a Research Forester (referred to in the record as "the Customer") for a position in his office. Upon review, Complainant believed the previous term appointment had been improperly approved by his colleagues. On May 23, 2013 Complainant sent a memo to the HR Director (two levels over S2's head), to notify her that based on the term appointment request, he had "discovered flaws, abuse of regulations, and unprofessional dealings of the HR Specialists." The Customer stated that there were valid reasons for requesting the individual for term appointment and asked to consult with Complainant about his concerns.
Complainant characterized the Customer's tone during the call as "aggressive," and that the Customer seemed to take the approval of this term appointment personally. The Customer felt Complainant was overly blunt compared with the other HR Specialists he had worked with on similar matters. He felt Complainant conveyed an attitude and point of view that HR had no obligation to explain their decisions on term appointments to customers. On June 20, 2013, BC1, who was not on the call, emailed the customer apologizing for Complainant's "rudeness and abruptness." She consulted with an Employee Relations Specialist and issued Complainant the July 19, 2013 LOW. BC1 retired shortly afterward.
Complainant filed a grievance, as he received no verbal counseling prior to the LOW. On July 30, 2013, S2 met with Complainant and rescinded the LOW, and it was later removed from Complainant's personnel file.
Harassment
On June 28, 2013, Complainant left his phone charging at his work station. When he returned, he discovered pictures of "apes of all kinds" had been taken using his phone. Specifically, Complainant found 5 photographs of a poster of a monkey hanging in a nearby empty cubicle. He did not notify BC1 at the time, but references telling "other" management officials at unspecified times. No action was taken until August 2013, when Complainant notified BC2.
On July 2, 2013, Complainant notified CB1 that he found gum stuck to his car after leaving it parked in the Agency parking lot. CB1 suggested that Complainant notify security personnel about the gum on his car. She also emailed the HR Director. Complainant went to Security, which would not provide him with the surveillance tapes of the parking lot without instructions from the Director. When Complainant emailed the Director, she advised him to file a police report, which Complainant did on July 18, 2013.
On August 27, 2013, Complainant found the side of his lunch bag had been cut open. Complainant was terrified that his food had been tampered with. He notified CB2, who advised him to take a picture of it, and he did. CB2 gave Complainant a new lunch bag and took him out to lunch, as he was visibly shaken. Complainant disclosed a number of alleged harassing incidents, many predating the relevant time frame for this complaint, which he described as "guerilla warfare." After lunch, CB2 notified S2 and requested an investigation.
An Employee Relations Specialist investigated Complainant's claim about the photographs taken with his phone, his destroyed lunch bag and various alleged instances of gum stuck to Complainant's car. During the investigation, the Specialist also came to believe that an unidentified person moved a gorilla stuffed animal from another employee's desk to Complainant's desk. After interviewing Complainant's coworkers and consulting with security, the Specialist was unable to determine who was responsible for the alleged harassment.
Complainant also filed a police report, alleging that 5 photos of monkeys were on his phone, and that more than one person took the photos. However, neither the internal investigation, nor the July 18, 2013 police report yielded any results.
The Agency issued its Final Order adopting the AJ's finding that Complainant failed to prove discrimination as alleged. The instant appeal followed.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ's legal and factual conclusions, and the Agency's Final Order adopting them, de novo. See 29 C.F.R. � 1614.405(a)(stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review..."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 ("EEO-MD-110"), at Chap. 9, � VI.B. (as revised, August 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo).
In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant's favor.
On appeal, Complainant argues that a hearing is warranted because the AJ "overlooked" multiple issues of material fact, such as the precise date of the conference call cited in the LOW, and Complainant's most recent "protected activity."5 We emphasize that within the context of an EEO Complaint, "protected activity" refers only to prior EEO activity, which must relate to a complainant's membership in a protected class.6 Upon review, we find no AJ error occurred by omitting these issues from his Decision because neither issue is material to the matter of whether Complainant was subject to disparate treatment or harassment on the bases of his protected classes, i.e. race, national origin, disability, and retaliation for prior protected activity.
Claim 1: Disparate Treatment
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he must first establish a prima facie case 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. 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. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Agency's legitimate nondiscriminatory reason for issuing the LOW was "unacceptable conduct" during a phone call with a customer. In his affidavit for the record, S2 recalled that BC1 issued the LOW "because a customer complained about how Complainant had "come across" to him." The LOW itself states that "[Complainant] became quite rude with [a customer] because he disagreed with Complainant's assessment," and reminds Complainant that he had been verbally warned about his "demeanor" in the past. Complainant maintains that he never received a verbal warning prior to the LOW. Complainant filed a grievance on the matter, there were "extended discussions about what happened" and S2 "decided to rescind the LOW since Complainant was aware of the concerns that had been raised by the LOW, which had been the point of issuing it to him."
Complainant has not offered any evidence that would indicate that the Agency's decision to issue the LOW was motivated by discriminatory animus toward his membership in a protected class. For instance, Complainant has not offered any comparator evidence of individuals outside his protected classes that were treated more favorably after engaging in the same conduct. Further, S2 rescinded the LOW and it is not reflected in Complainant's record. Complainant's argument on appeal, that S2 delayed removing the LOW from his record and was motivated by the grievance (as opposed to determining Complainant was sufficiently aware of the concerns raised in the LOW) does not establish the requisite discriminatory motive.
Based on the evidence before us, we find insufficient evidence to establish the Agency's reasons for issuing the LOW were pretext for discrimination.
Claims 2(b), 2(c), and 2(e): Harassment
As Complainant is alleging harassment, he 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 race, color, national origin, disabilities, and prior EEO activity. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice 915.002 (Jun. 18, 1999).
Assuming, arguendo that the actions described in Claims 2(b), 2(c), and 2(e) occurred as alleged, given the time frame and circumstances, we do not find they were sufficiently pervasive to meet the threshold for harassment.
Additional Claims
On appeal, Complainant alleges that on July 1, 2013, his job duties were reassigned and he was removed from his department as further reprisal. As he did not raise this allegation in his Formal Complaint, we will not review it here. If Complainant wishes to pursue a separate complaint on this new claim, then he must contact an EEO Counselor pursuant to 29 C.F.R. � 1614.105. See Hall v. United States Postal Serv., EEOC Appeal No. 0120031342 (Apr. 24, 2003).
Upon careful review of the AJ's decision and the evidence of record, as well as the parties' arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's Final Order adopting the AJ's decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
August 23, 2018
__________________
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 Complainant elected not to appeal the AJ's dismissal of Claims 2(a) and 2(d).
3 According to the Counselor's report, the additional instances of gum stuck to Complainant's car occurred in 2008 and 2009, prior to the relevant time frame of 2012 and 2013.
4 Due to administrative error, the LOW identified the conference call date as May 29, 2013. On appeal, Complainant clarified that he participated in two conference calls with the customer about the matter at issue, on May 22 and May 28, 2013 but was off site on May 29, 2013.
5 Complainant strenuously argues that the correct date of the conference call was May 22, 2013, and afterward, the customer emailed him with positive feedback. Yet, Complainant acknowledges that on May 28, 2013, he participated in another conference call with the customer. Though brief, the May 28, 2013 call was consistent with the conference call described in the LOW, in that Complainant denied the customer's request and instructed him to direct all further inquiries to the Deputy Director. According to the Agency, it was not the Customer, but one of Complainant's coworkers that alerted Management about his alleged unprofessional conduct during the call. Considering the record, we find the May 22, 2013 call and subsequent positive feedback are not material to the instant complaint. Additionally, Complainant's bald assertions about the amount of time between the alleged "rude" conduct and the date of the LOW are insufficient to show the LOW was pretext for discrimination.
6 In this instance, Complainant's referenced "protected activity" concerns his notifying the HR Director that CB1, S2, and his coworkers were violating term appointment regulations. Complainant makes no mention of a protected class under EEO statutes, but instead appears to be raising a whistleblower claim. The Whistleblower Protection Act is beyond our jurisdiction. See Reavill v. Dep't of the Navy, EEOC Appeal No. 05950174 (July 19, 1996).
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