0120092444
02-04-2011
Wilfredo Colon, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.
Wilfredo Colon,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Federal Emergency Management Agency),
Agency.
Appeal No. 0120092444
Hearing Nos. 150-2005-00121X, 510-2006-00159X, 510-2008-00254X
Agency Nos. 05-00033, 05-00088, 06-00107
DECISION
On May 21, 2009, Complainant filed an appeal from the Agency's February
9, 2009, 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., and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal
pursuant to
29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency's final decision.
ISSUES PRESENTED
The issues presented are: (1) whether the Agency properly dismissed
claims 6 and 9; and (2) whether Complainant established that the Agency
subjected him to discrimination and/or harassment in claims 1-5, 7, and 8,
on the bases of national origin (Puerto Rican), sex (male), color (White),
age (55), and reprisal for engaging in prior protected EEO activity.
BACKGROUND
Beginning on August 22, 2004, Complainant applied for temporary local
hire positions at the Agency. On September 23, 2004, Complainant
received a temporary appointment as a Disaster Assistance Employee
(DAE) - Local Hire1 at the Agency's Long Term Recovery Office (LTRO)
in Orlando, Florida. Complainant was hired by the State Liaison (SL),
who provided local recruitment for the Agency. Upon hire, Complainant
was assigned to a Caseworker position in the Preplacement Interview
(PPI) Department. Complainant's first-level supervisor until January
2005 was a Team Lead (S1A). Complainant's second-level supervisor was
the Department Supervisor (S2A). On February 10, 2005, Complainant was
assigned to a Realty Specialist position in the Resources Department.
Before April 22, 2005, Complainant's first-level supervisor was a Team
Lead (S1B1).
After April 22, 2005, Complainant's first-level supervisor was another
Team Lead (S1B2). Complainant's second-level supervisor was the
Individual Assistance / Recertification Section Chief (S2B). On August
19, 2005, Complainant was released from the Agency. A Request for
Personnel Action form regarding Complainant's release stated the nature
of the action as "JOB COMPLETE." On September 12, 2005, Complainant was
re-hired as a DAE - Local Hire for an Applicant Services Representative
position in the Call Center. Complainant's first-level supervisors
were the Team Leads (S1C1, S1C2, and S1C3). Complainant's second-level
supervisor was S2B. On January 4, 2006, Complainant again was released
from the Agency.
On March 28, 2005, Complainant filed an EEO complaint [Agency
No. 05-00033] alleging that the Agency discriminated against him and
subjected him to a hostile work environment2 on the bases of race
(Puerto Rican),3 sex (male), color (White), age (55) and reprisal when:
1. On September 23, 2004, he became aware that individuals selected
in August 2004 for positions at the Agency were less qualified than him;
2. On January 10, 2005, he was moved in front of his supervisor's
desk and he believed that he was being watched;
3. In February 2005, he was not considered for a promotion when
Recertification positions became available;
On October 18, 2005, Complainant filed an EEO complaint [Agency
No. 05-00088] alleging that the Agency discriminated against him on the
basis of reprisal when:
4. On August 19, 2005, he was released from his duties as a Realty
Specialist;
On September 18, 2006, Complainant filed an EEO complaint [Agency
No. 06-00107] alleging that the Agency discriminated against him on the
bases of age and reprisal when:
5. On October 11, 2005, he was overlooked for training as a PPI
Caseworker;
6. Beginning on October 26, 2005, he was constantly watched while
processing applicants;
7. In or about the last week of November 2005, he was not selected for
fingerprinting after he submitted background check information;
8. On January 4, 2006, he was laid off despite being more qualified than
the employees who were allowed to remain; and
9. On unspecified dates, the EEO Counselor in the instant complaint
failed to conduct a limited inquiry, provide him with the "Notice of
Right to File," and provide him with the formal complaint form.
At the conclusion of the investigations, the Agency provided Complainant
with copies of the report of investigation and notice of his right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
timely requested a hearing in Agency Nos. 05-00088 and 06-00107.
Complainant subsequently requested a final decision in Agency No. 05-00033
and requested that it be consolidated with his two other complaints for
processing.4 Consequently, the Agency issued a final decision pursuant to
29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed
to prove that the Agency subjected him to discrimination as alleged.
First, the Agency procedurally dismissed claims 6 and 9. The Agency
dismissed claim 6 pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim. The Agency dismissed claim 9 pursuant to 29 C.F.R. �
1614.107(a)(8) for alleging dissatisfaction with the processing of an EEO
complaint. Next, the Agency found that management articulated legitimate,
nondiscriminatory reasons for its actions in claims 1-5, 7, and 8, which
Complainant failed to demonstrate were a pretext for discrimination.5
Finally, the Agency found that Complainant failed to establish a claim
of hostile work environment with regard to claims 1-3.
CONTENTIONS ON APPEAL
On appeal, Complainant maintained, in pertinent part, that the
Agency discriminated against him in favor of younger, Hispanic,
female employees who were less qualified than him both in education and
experience, and also retaliated against him because of his EEO activity.
First, Complainant noted that he had a bachelor's degree in Business
Administration and many years of work experience, including several months
of experience as a Disaster Assistance Loan Officer with the U.S. Small
Business Administration. Next, Complainant asserted that the Agency
erred in dismissing claims 6 and 9. Regarding claim 6, Complainant
argued that S1C1 intentionally harassed him at work and that his claim
should be upheld because he had no legal advice or legal background on
how to proceed with a harassment claim. Regarding claim 9, Complainant
argued that the claim was valid and should be upheld because had no
legal advice or legal background on what to do in such a situation.
Further, Complainant asserted that he demonstrated that the Agency's
articulated explanations for claims 1-5, 7, and 8, were a pretext for
discrimination and that he established a hostile work environment for
claims 1-3.6 Finally, Complainant submitted several documents already in
the record: (1) a holiday card dated December 17, 2004 from S1A stating,
"[Complainant], you work too hard sometimes. Give it a rest!!";(2) a 2004
holiday gift card from S1A with an note stating, "[Complainant], thank you
for all your hard work."; and (3) a satisfactory performance appraisal
from S1B1 for February 10, 2005 to April 2005, stating, "[Complainant]
manages his time, is dependable and organized. His willingness to work
and excellent customer service skills have enabled him to complete all
assignments in an exemplary manner." Complainant also submitted several
documents not already in the record: (1) a resume updated through November
2008; and (2) a list of all the positions he applied for at the Agency's
LTRO through June 2008.7
The Agency did not submit a statement on appeal.
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 EEO MD-110,
at Ch. 9, � VI.A. (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").
Failure to State a Claim - Claim 6
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which there
is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049
(Apr. 21, 1994).
In Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Sav. Bank v. Vinson, 477 U.S. 57,
67 (1986), that harassment is actionable if it is sufficiently severe
or pervasive to alter the conditions of the complainant's employment.
The Court explained that an "objectively hostile or abusive work
environment [is created when] a reasonable person would find [it]
hostile or abusive:" and the complainant subjectively perceives it
as such. Harris, supra at 21-22. Thus, not all claims of harassment
are actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition or privilege of employment,
a claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.
The Commission has a policy of considering reprisal claims with a
broad view of coverage. See Carroll v. Dep't of the Army, EEOC Request
No. 05970939 (Apr. 4, 2000). Under Commission policy, claimed retaliatory
actions which can be challenged are not restricted to those which affect a
term or condition of employment. Rather, a complainant is protected from
any discrimination that is reasonably likely to deter protected activity.
See EEOC Compliance Manual Section 8, "Retaliation," No. 915.003 (May 20,
1998), at 8-15; see also Carroll, supra.
In his formal complaint, Complainant alleged that S1C1 constantly watched
him do his work without a justified reason and that, at one time, he
had to go to Stress Management because he was "getting too nervous"
from S1C1's watching. In his affidavit, Complainant attested that S1C1
"criticized [his] work unnecessarily and micro-managed [his] activities."
On appeal, Complainant asserted that that S1C1 was a "bully" and "very
unprofessional."
Upon review of the record, we find that Complainant failed to state
a claim. We find that the allegations, even if proven to be true, would
not indicate that Complainant had been subjected to a harm or loss with
respect to a term, condition, or privilege of employment for which there
is a remedy, or that the actions as alleged were sufficiently severe or
pervasive to have altered the conditions of his employment. In addition,
we find that Complainant has not shown that the alleged actions were
likely to deter him or others from engaging in protected activity.
As such, we find that the Agency properly dismissed claim 6 pursuant to
29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
Dissatisfaction with the Processing of an EEO Complaint - Claim 9
The regulation set forth at 29 C.F.R. � 1614.107(a)(8) provides,
in relevant part, that an agency shall dismiss claims alleging
dissatisfaction with the processing of a prior complaint. In claim 9,
Complainant alleged that the EEO Counselor in the instant complaint
[Agency No. 06-00107] failed to conduct a limited inquiry, provide him
with the "Notice of Right to File," and provide him with the Formal
Complaint form. In addition, Complainant alleged that the EEO Counselor
neglected her duties "with the intention to harm" him and instead
"partialized" with Agency management.
Upon review of the record, we find that the Agency properly dismissed
claim 9 pursuant to
29 C.F.R. � 1614.107(a)(8) for alleging dissatisfaction with the
processing of a pending complaint. While Complainant's concerns do
not give rise to an actionable claim, the Agency has a duty to address
this matter. EEO MD-110, Ch. 5, � IV.D provides, in relevant part,
the following: "The agency official responsible for the quality of
complaints processing must add a record of the complainant's concerns and
any actions the agency took to resolve the concerns, to the complaint
file maintained on the underlying complaint. If no action was taken,
the file must contain an explanation of the agency's reason(s) for not
taking any action." The record, however, does not reflect what, if any,
actions the Agency took to address Complainant's concerns. Consequently,
to remedy this deficiency, and out of concern for the integrity of the
Agency's EEO process, we order the Agency to provide Complainant with
a report of any actions it took to resolve his concerns regarding the
processing of his complaint, or an explanation of its reasons for not
taking action, in accordance with the Order below.
Disparate Treatment - Claims 1-5, 7, 8
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). Complainant
must initially 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). Proof of a prima facie case will vary
depending on the facts of the particular case. McDonnell Douglas, 441
U.S. at 804 n.14. 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). To ultimately
prevail, Complainant must prove, by a preponderance of the evidence,
that the Agency's explanation is pretextual. 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). At all times, Complainant retains the burden
of persuasion, and it is his obligation to show by a preponderance of
the evidence that the Agency acted on the basis of a prohibited reason.
See Hicks, supra.
Claim 1
Assuming, arguendo, that Complainant established a prima facie
case of discrimination on the bases of national origin, sex, color,
age, and reprisal, we find that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, SL attested that
when Complainant first applied in August 2004, there were no job openings
that matched his skill sets. In addition, SL attested that there were
no positions available in PPI and he was recruiting for professional
positions such as engineers, architects, and project managers.
Because the Agency articulated legitimate, nondiscriminatory reasons
for its actions, the burden shifts to Complainant to prove, by a
preponderance of the evidence, that the Agency's reasons are a pretext
for discrimination. On appeal, Complainant asserted that, based on
what he heard on a local radio station, the Agency was hiring bilingual
employees and was not requiring any specialized skills. Complainant
cited testimony from a female acquaintance (FA) who was younger, White,
and American, that the Agency had a lot of positions open at the time.
In addition, Complainant asserted that while SL delayed hiring him for one
month, SL interviewed and immediately hired female employees who lacked
his education and experience. Specifically, Complainant asserted that
SL interviewed and immediately hired FA, who applied a day before him.
According to Complainant, FA had experience only in quality control and
sales, did not have a college degree, and was hired to work in security.
Further, Complainant cited FA's testimony that SL made negative comments
about Complainant when she tried to get SL to hire him. Finally,
Complainant asserted that it was clear that SL had no intention of hiring
him when he applied, but instead hired "many young attractive ladies,
with the hope to date them."
Upon review of the record, we find that Complainant failed to prove,
by a preponderance of the evidence, that the Agency's reasons are a
pretext for discrimination. The record contains an affidavit from FA,
who was hired by SL in August 2004 to work as an Administrative Assistant
(AA) in the LTRO's Safety and Security Section. FA attested that SL
commented that Complainant could not work in a Community Relations
position because he did not feel Complainant "looked like he could deal
with stress or pressure in the field." Regarding Complainant's assertion
that FA's testimony reflects discrimination by SL, we find that the
evidence is insufficient to show discrimination for several reasons.
First, we note that Complainant failed to rebut SL's explanation that
there were no job openings at the time that matched his skill sets.
Although the evidence shows that FA was hired in August 2004 as an AA for
the Safety and Security Section, Complainant has presented no evidence
that his skill set matched the desired skill set for the AA position or
that FA lacked the skill set for the AA position. Second, the record
also contains an affidavit from SL, who denied ever stating to anyone
that he did not feel Complainant could deal with stress or pressure.
As mentioned above, at all times the ultimate burden of persuasion
remains with Complainant to demonstrate that, more likely than not, the
Agency's reasons are a pretext for discrimination. As we do not have
the benefit of an AJ's findings of fact and credibility after a hearing,
as Complainant chose a final decision, we can only evaluate the facts
based on the weight of the evidence presented to us. Accordingly,
we find that Complainant has not met his burden of proof.
Claim 2
Assuming, arguendo, that Complainant established a prima facie
case of discrimination on the bases of national origin, sex, color,
age, and reprisal, we find that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, S1A attested
that she never deliberately moved an employee on her team in front her.
S1A explained that employees worked in a line of tables, employees were
constantly moved around to make room for other employees who came into
the area to work a disaster, and she moved employees to wherever there
was an available table. In addition, S2A attested that the employees
were moved around on a regular basis in groups according to job functions
or to group employees who were working on a particular disaster.
Because the Agency articulated legitimate, nondiscriminatory reasons
for its actions, the burden shifts to Complainant to prove, by a
preponderance of the evidence, that the Agency's reasons are a pretext
for discrimination. On appeal, Complainant asserted that there was no
need for him to be moved to the table in front of S1A's desk, except
to be where S1A could watch his work and make him feel uncomfortable.
In addition, Complainant asserted that another employee was moved
to a table in front of S1A's desk because she talked too much with
the person in front of her. Further, Complainant asserted that S1A
was close friends with SL and SL wanted him out of the Agency because
Complainant had complained to SL's supervisor about the hiring process.
Finally, as evidence of how S1A1 "made it very difficult" for him after
becoming friends with SL, Complainant submitted holiday cards from S1A1,
written in December 2004 before she became friends with SL, in which
she thanked Complainant for his hard work.
Upon review of the record, we find that Complainant failed to prove,
by a preponderance of the evidence, that the Agency's reasons are a
pretext for discrimination. Beyond his bare assertions, Complainant has
not produced evidence to show that he was moved in front of S1A1's desk
for discriminatory reasons, or that any S1A1 discriminated against him
because of any friendship with SL.
Claim 3
Assuming, arguendo, that Complainant established a prima facie
case of discrimination on the bases of national origin, sex, color,
age, and reprisal, we find that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, S2A attested
that Team Leads made recommendations to her regarding which PPI employees
should be referred for the Recertification positions based on production
levels, customer service skills, interview skills with applicants,
and documentation they completed after the interviews.
Because the Agency articulated legitimate, nondiscriminatory reasons
for its actions, the burden shifts to Complainant to prove, by a
preponderance of the evidence, that the Agency's reasons are a pretext
for discrimination. On appeal, Complainant asserted that S2B was
working closely with SL, implying that therefore S2B had a motive for
not considering him for the Recertification positions. In addition,
Complainant asserted that he was better qualified than many of the
employees who ended up in the Recertification positions because they
did not have a college education or much work experience.
Upon review of the record, we find that Complainant failed to prove, by a
preponderance of the evidence, that the Agency's reasons are a pretext for
discrimination. Beyond his bare assertions, Complainant has not produced
evidence to show that he was not considered for the Recertification
positions for discriminatory reasons, or that S2B discriminated against
him because of any close work relationship with SL. In fact, S2A attested
that she made the decision on which employees to refer for the positions,
based on input from Team Leaders, and was not influenced by anyone else.
Regarding Complainant's assertion that his education and experience were
superior, we note that this does not rebut the Agency's explanation; S2A's
testimony reflects that education and outside work experience were not
factors in the Team Leads' decision not to recommend Complainant.
Claim 4
Assuming, arguendo, that Complainant established a prima facie case
of discrimination on the basis of reprisal, we find that the Agency
articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, S2B and S1B2 attested that Complainant was released because
the Resources Department had been "rightsizing" - reducing the workforce
because the workload was diminishing. In addition, S2B attested that
she released Complainant because she no longer needed three employees
in the department and the other two employees were S1B2 and a Data
Entry Specialist. Further, S1B2 attested that the department had around
15 employees in February 2005 and Complainant was one of the last few
employees to be released.
Because the Agency articulated legitimate, nondiscriminatory reasons
for its actions, the burden shifts to Complainant to prove, by a
preponderance of the evidence, that the Agency's reasons are a pretext
for discrimination. On appeal, Complainant asserted that younger
employees who did not have a college education or much work experience
were not released. In addition, Complainant cited examples of younger
workers who were not released and older workers who were released.
In addition, Complainant submitted a satisfactory performance appraisal
from S1B1 for the period between February 10, 2005 and April 21, 2005
Upon review of the record, we find that Complainant failed to prove,
by a preponderance of the evidence, that the Agency's reasons are a
pretext for discrimination. Regarding Complainant's assertion that his
education and experience were superior, we note that this does not rebut
the Agency's explanation; the testimony of S2B and S1B2 reflects that
education and outside work experience were not factors in their decision
to release Complainant. Regarding Complainant's assertion that younger
employees with lesser qualifications remained at the Agency, we note that
Complainant failed to show that those employees performed the same type
of work as he did or worked in his department. Regarding Complainant's
satisfactory performance appraisal, we note that this also failed to
rebut the Agency's explanation; the testimony of S2B and S1B2 reflects
that quality of work performance was not a factor in their decision to
release Complainant.
Claim 5
Assuming, arguendo, that Complainant established a prima facie case
of discrimination on the bases of age and reprisal, we find that the
Agency articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, S1C2 attested that the PPI Department was staffed separately
from the Call Center and that the only Call Center employees who moved
to the PPI Department were those that expressed some hardship with,
for example, the second-shift Call Center hours. In addition, S1C2
attested that the majority of PPI employees were hired directly into
the department and few were transferred internally.
Because the Agency articulated legitimate, nondiscriminatory
reasons for its actions, the burden shifts to Complainant to prove,
by a preponderance of the evidence, that the Agency's reasons are a
pretext for discrimination. On appeal, Complainant asserted that he was
qualified to handle the PPI position because he had previously performed
successfully in PPI and noted the less-than-professional performance of
some other employees.
Upon review of the record, we find that Complainant failed to prove,
by a preponderance of the evidence, that the Agency's reasons are a
pretext for discrimination. Regarding Complainant's assertion that his
work performance in PPI was superior, we note that this does not rebut
the Agency's explanation; S1C2's testimony reflects that the quality of
work performance in PPI was not a factor in whether Call Center employees
were moved to the PPI Department.
Claim 7
Assuming, arguendo, that Complainant established a prima facie case of
discrimination on the bases of age and reprisal, we find that the Agency
articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, S2B and S1C1 attested that they had no knowledge of
Complainant's allegation that he was not selected for fingerprinting.
Because the Agency articulated legitimate, nondiscriminatory reasons
for its actions, the burden shifts to Complainant to prove, by a
preponderance of the evidence, that the Agency's reasons are a pretext
for discrimination. On appeal, Complainant reasserted that his group was
told that the Agency had run out of fingerprinting cards and had to wait
until the cards arrived, but the group was laid off in the interim.
Upon review of the record, we find that Complainant failed to prove, by a
preponderance of the evidence, that the Agency's reasons are a pretext for
discrimination. Aside from his bare assertions, Complainant has produced
no evidence that he was not selected for fingerprinting or, even assuming
he was not selected, that the reason was discriminatory. In addition,
we note that Complainant failed to identify a specific management official
responsible for the alleged discriminatory action.
Claim 8
Assuming, arguendo, that Complainant established a prima facie case
of discrimination on the bases of age and reprisal, we find that
the Agency articulated legitimate, nondiscriminatory reasons for
its actions. Specifically, S2B attested that Complainant was among
30 temporary employees released in January 2006 because of reduced
workload in the Call Center, although eventually all the Call Center
employees were released. In addition, S2B attested that the Team
Leads recommended Complainant's release, after work in the Call Center
diminished, because he was not among the top performers. Further, S1C3
attested that Complainant's work performance was satisfactory, but not
outstanding, and that his performance level was equal to the performance
level of the average Call Center employee. Finally, S1C2 attested that
all employees were evaluated on a number of criteria including time,
attendance, and efficiency, and that Complainant failed to adhere to
a number of those guidelines and procedures. We note that the record
contains guidelines and procedures for Call Center employees involving
absenteeism, attendance, and conduct/performance issues.
Because the Agency articulated legitimate, nondiscriminatory reasons
for its actions, the burden shifts to Complainant to prove, by a
preponderance of the evidence, that the Agency's reasons are a pretext
for discrimination. On appeal, Complainant asserted that the Team Leads
who testified that he was not a top performer were close friends with
S2B and recommended his release because they knew S2B was named in one
of his EEO complaints.
Upon review of the record, we find that Complainant failed to prove,
by a preponderance of the evidence, that the Agency's reasons are a
pretext for discrimination. Beyond his bare assertions, Complainant
has not produced evidence to show that S1C2 and S1C3 testified falsely
about his work performance because of any friendship with S2B.
Harassment - Claims 1-5, 7, 8
Complainant asserted on appeal, "It is very important when making
a decision on my appeal that this is not a simple complaint, but a
combination of three separate complaints, which clearly shows a pattern
of continuous discrimination." In addition, Complainant asserted that
there was enough information in his three complaints to link SL, S2B,
S1A, S1C1, and others to discrimination against him.
To the extent that Complainant is alleging that he was subjected to a
hostile work environment with respect to the matters set forth in his
complaint, we find, under the standards set forth in Harris v. Forklift
Systems, Inc., 510 U.S. 17 (1993), that Complainant's claim of hostile
work environment must fail. See EEOC Enforcement Guidance on Harris
v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994).
A finding of hostile work environment is precluded by our determination
that Complainant failed to establish that any of the actions taken by the
Agency were motivated by discriminatory animus or a retaliatory motive.
See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21,
2000).
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 decision.
ORDER
The Agency is ordered to take the following action:
1. Within thirty (30) calendar days of the date this decision becomes
final, the Agency official responsible for the quality of complaints
processing must add a record of Complainant's concerns, and any actions
the Agency took to resolve the concerns, to the complaint file maintained
on the underlying complaint. Moreover, the Agency shall provide
Complainant with a report of any actions taken by the Agency to resolve
the concerns, or an explanation of its reason for not taking action.
The Agency shall submit a copy of the report or its explanation to the
Compliance Officer referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory.
The Agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013. The Agency's report must contain supporting documentation,
and the Agency must send a copy of all submissions to the Complainant.
If the Agency does not comply with the Commission's order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The Complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,
1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled "Right to File A Civil
Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
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 (November 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it
also requires the Agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the Agency, or your appeal with the Commission, until
such time as the Agency issues its final decision on your complaint.
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
__2/4/11________________
Date
1 A Human Resources Specialist attested that DAEs are locally hired
citizens, appointed rather than hired on a competitive basis, who provide
vital services that support the disaster recovery program operation.
2 The Agency stated in its final decision that, although not specified in
its letter of acceptance dated May 4, 2005, it would also analyze claims
1-3 under a hostile work environment framework. The Agency noted that
Complainant alleged in his formal complaint that he was subjected to
"a pattern of attitudes and actions" which led him to believe he was a
"victim of discrimination and reprisal."
3 Although Complainant designated his race as "Puerto Rican,"
the Commission views this as a description of his national origin.
Accordingly, we will analyze his claims as indicating discrimination
based on national origin, among other things.
4 On July 31, 2006, after receiving Complainant's request, the AJ issued
an Order of Voluntary Dismissal and directed the Agency to issue a final
decision.
5 The Agency did not analyze whether Complainant established a prima
facie case of discrimination on the bases of race, sex, color, age,
and reprisal.
6 We will address Complainant's contentions on appeal in further detail
in the "Analysis and Findings" section of the decision.
7 We note that, as a general rule, no new evidence will be considered
on appeal unless there is an affirmative showing that the evidence was
not reasonably available prior to or during the investigation. Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at Ch. 9, � VI.A.3 (Nov. 9, 1999). Complainant has not shown
that this new evidence regarding his resume and applications submitted
was not reasonably available prior to or during the investigation.
Accordingly, we decline to consider this new evidence on appeal.
??
??
??
??
2
0120092444
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120092444