William A. Enriquez, Complainant,v.Stephen L. Johnson, Administrator, Environmental Protection Agency, Agency.

Equal Employment Opportunity CommissionMay 16, 2007
0120071685 (E.E.O.C. May. 16, 2007)

0120071685

05-16-2007

William A. Enriquez, Complainant, v. Stephen L. Johnson, Administrator, Environmental Protection Agency, Agency.


William A. Enriquez,

Complainant,

v.

Stephen L. Johnson,

Administrator,

Environmental Protection Agency,

Agency.

Appeal No. 0120071685

Agency No. 2003-0068-R5

DECISION

Complainant timely initiated an appeal from the agency's 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 appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).

During the relevant time, complainant was employed as an Ecologist,

GS-408-13, at the agency's Technical Support and Permitting Section

(TSPS), Waste Management Branch (WMB) in Chicago, Illinois. 1

On August 27, 2003, complainant filed the instant formal EEO complaint.

Therein, complainant claimed that he was subjected to a hostile work

environment based on the bases of race (Hispanic), national origin

(Cuban), sex (male), age (D.O.B. 04/28/62), parental status (single

father) and in reprisal for prior EEO activity.2

On April 19, 2004, the agency issued a partial dismissal. Therein,

the agency determined that complainant's complaint was comprised of the

following six claims:

a. in November 2001, complainant was denied flexiplace;

b. complainant was not selected for an Ecologist, GS-408-13, advertised

under Vacancy Announcement No. MP-2002-0041. The position was cancelled

and later re-advertised under Vacancy Announcement No. MP-2002-0169.

Complainant was not selected for an Ecologist, GS-408-13 position

advertised under Vacancy Announcement No. MP-2002-0169;

c. on June 30, 2002, complainant's SF-52 and position description were

removed and substituted with backdated versions in order to deny him a

promotion and career development;

d. in July, August and September 2002, complainant was provided with

a biased mid-year review, a fifth critical element was added to his

PERFORMS standard, complainant was harassed regarding time and attendance;

was given undesirable assignments and then given unapproved tests to

validate those assignments, was required to participate in training not

required by his position descriptions, his co-workers were solicited for

defamatory statements about him, his work was discredited and scrutinized;

was given assignments outside his position description, he was the only

employee required to document his work; he was given useless assignments

with short deadlines in order to make him late on other assignments, and

management refused to acknowledge that he may need to request additional

leave to attend to his children during a family crisis;

e. in October, November and December 2002, management refused to provide

complainant routine guidance and answer his questions, his work was

overly scrutinized and defamed, was required to substantially justify

his reasons for requesting a routine site visit, his request to visit

a permit site and his request for training was denied and his 11/17/02

flexiplace application was improperly processed; and

f. in January, February and March 2003, management refused to cooperate

and properly process his previously approved leave bank application,

management conducted a biased annual review, he was placed on a

Performance Improvement Plan and was denied extended leave without pay

to attend to family matters.3

The agency accepted claims b and f for investigation. The agency

dismissed claims 1, 3, 4 and 5 pursuant to � 1614.107(a)(4) on the

grounds that complainant filed grievances on March 18, 2002, April 17,

2002, July 29, 2002, August 23, 2002, September 27, 2002 and February 27,

2003, on the same matters prior to the filing of his EEO complaint.4

By letter dated April 19, 2004, the agency accepted the following claims

for investigation:

Whether complainant was subjected to a hostile work environment based on

race, national origin, sex, age and in reprisal for prior EEO activity

when:

1. Complainant was not selected for an Ecologist, GS-408-13 position,

advertised under Vacancy Announcement No. MP-2002-0041. The position

was cancelled and later re-advertised under Vacancy Announcement

No. MP-2002-0169. Complainant was not selected for an Ecologist,

GS-408-13 position advertised under Vacancy Announcement No. MP-2003-0169;

2. in 2003, management refused to cooperate and properly process

complainant's previously approved leave bank application;

3. in 2003, management conducted a biased annual review;

4. in 2003, complainant was placed on a Performance Improvement Plan; and

5. in January - February 2003, complainant was denied extended leave

without pay, to attend to family matters.

At the conclusion of the investigation, complainant was informed of

the right to request a hearing before an EEOC Administrative Judge or

alternatively, to receive a final decision by the agency. Complainant

requested that the agency issue a final decision.

In its October 2, 2006 final decision, the agency found no discrimination.

The agency found that there was insufficient evidence to establish a prima

facie case of race, national origin, sex, age and reprisal discrimination.

The agency nevertheless found that management articulated legitimate,

nondiscriminatory reasons for its actions which complainant failed to show

were a pretext for discrimination/retaliation. The agency further found

that complainant failed to establish a prima facie case of hostile work

environment based on race, national origin, sex, age and retaliation.

Regarding claim 1, the record reflects the Selecting Official (SO)

stated that the panel determined that because none of the candidates

was qualified to perform the duties for the position of Ecologist,

GS-408-13 under the first vacancy announcement, the subject position

was cancelled and later re-announced. SO further stated that following

the announcement of the second vacancy, three candidates, including

complainant, applied for the subject position and were referred to her

for consideration. SO stated that she put together a panel of three

members including herself. SO stated that the subject position "would

deal with programs in Region 5 and required excellent communications as

well as technical skills." SO stated that she and other panelists worked

together on developing questions for the interview.; and that following

each interview, the panel "talked about the strengths and weaknesses of

each candidate." SO stated that after the panel finished interviewing

all candidates, she asked the panelists for a summary of each candidate.

SO stated that the panel met two times to discuss the candidates and

"in the end, I believe I can say we all agreed that [selectee] was the

best candidate." SO stated that during her interview, the selctee was

"articulate and professional." SO also stated that the selectee "was

very able to answer all questions about the eco-risk process without

no difficulty." SO stated that selectee had extensive experience in

reviewing and "working to develop eco-risk assessment as a number of

RCRA corrective actions; some of them very large and complex."

SO stated that complainant was not selected for the subject position

because "we needed someone who had a good solid understanding of

ecological risk assessment and what it takes to get one done." SO stated

that during his interview, complainant was unable to explain the eco-risk

assessment paradigm "which is the framework. He could not identify

ecological databases. He identified the Human Health Risk Assessment

database incorrectly as an eco-risk database." SO also stated that during

the interview, complainant seemed "confused about the whole process.

He did not communicate well. He had trouble staying on point."

The record contains the interview notes of one of the other two panelists

(P2). Therein, P2 stated that the selectee "seemed to be very well

qualified for the position both in terms of experience and background

having conducted graduate research toward her MS and previously worked

for the Missouri Dept. of Natural Resources and EPA Region 5." P2 stated

that overall the selectee gave him the impression "of a personal well

qualified for the incumbent position. She has the experience and

background appropriate for the requirements of the job and seemingly

would need very little start up time to assume the responsibilities of

the position." P2 complainant "seemed to have a difficult time expressing

himself and gave me the impression of being vaguely familiar with the

concepts, tools, and issues but being somewhat removed." P2 stated

that in regard to the question concerning ecological risk assessments,

complainant "does not seem to have had much if any experience conducting

or leading ecological risk assessments (ERAs)."

Regarding claim 2, the record reflects that complainant's first-level

Supervisor (S1) stated that on December 20, 2002, complainant had given

her a Leave Bank application dated December 19, 2002, but that that

he withdrew the application and replaced it with another application

on December 23, 2002.5 S1 further stated in the December 23, 2002

application, complainant requested 80 hours of leave for his own

medical emergency from January 9, 2002 to February 19, 2002. S1 stated

complainant's request "did not conform to my understanding of the Leave

Bank requirements, and my recommendation of 12/24/02 to the Leave Bank

reflected my understanding. In addition, I was somewhat skeptical of

complainant's request because it took him almost a year to decide he had

had a medical emergency and he had told me on a previous occasion that

when he obtained Leave Bank leave for a prospective medical emergency,

his awarded ceiling was more than he needed and he had used the remainder

to take his family on a vacation to Hawaii."

S1 stated that she then submitted complainant's second application

and her recommendation to the Leave Bank Accommodation Coordinator

(Coordinator). S1 stated that a named Public Health Service Physician

(Physician) then initially recommended approval of complainant's request.

S1 stated while supervisors are not privy to staff medical records,

she noted some of complainant's leave requests "were for family leave,

some for annual leave and some for sick leave." S1 stated that she

asked the Coordinator, and "she in turn asked [a named physician] to

provide me with the specific dates of absence within the time period

that were related to Complainant's medical emergency." S1 stated that

after the Coordinator sent complainant a memorandum dated February 14,

2003 requesting the exact dates of medical emergency related absences, the

Physician recommended that complainant's Leave Bank request be denied.

The record further reflects that the Coordinator stated that in the event

an employee exhausts his or her leave, the employee may apply for up

to 200 hours of Leave Bank benefits per year. The Coordinator further

stated that the hours obtained from the Leave Bank Program "can be used

only for the purposes of sustained illness, either for the employee or

their family." The Coordinator stated that each time an employee applies

for benefits, [his or her] request "must be verified by documentation

provided by the employee's physician." The Coordinator stated that

while all employees' information is kept confidential, she and the

Physician are the only ones to see this information. The Coordinator

stated that in complainant's case, the Physician "reviewed his request

and initially approved it. It is then up to the supervisor to grant

the leave." The Coordinator stated that at that point, it was almost

a year after complainant used the leave when he applied for Leave Bank

benefits. The Coordinator stated that because S1 was unable to locate

complainant's leave slips to account for the 80 hours of leave, she sent

more documentation to the Physician. The Coordinator also stated that

she sent the Physician a facsimile stating that S1 "wanted a review of

the request and discussion with complainant's physician because the time

cards reflected absence for family matters and the flu."

The Coordinator stated that it is the policy that use of the Leave Bank

is for a specific condition or situation, and not for a combination of

conditions or situations. The Coordinator stated that according to the

time cards, complainant was off work for various reasons. The Coordinator

stated that on March 14, 2003, the Physician stated that after a review of

the records, it was recommended that no hours be given to complainant from

the Leave Bank. The Coordinator stated the according to the Physician,

he attempted to talk with complainant's physician several times without

success. Furthermore, the Coordinator stated that on March 14, 2003, she

notified complainant by e-mail that his application had been rejected.

Regarding claim 3, S1 stated that she gave complainant an "unsatisfactory"

rating based on her observations of his performance from the time she

returned to TSPS, complainant's mid-year evaluation, and "interim

evaluation conducted by complainant's acting supervisors during my

absence." Specifically, S1 stated that from August 2001 to October 2002,

she was detailed to the national Title 6 task force. S1 stated that while

his performance standards consisted of five critical elements, complainant

was rated "unsatisfactory" in two of the critical elements in regard

to providing ecological technical support. S1 stated that complainant

was rated "satisfactory" in three of the critical elements. S1 stated

"these ratings resulted in an overall rating of 'unsatisfactory.'"

S1 stated that during her detail, the two acting Supervisors "observed

some of the performance issues demonstrated by complainant including

complaints from Project Managers about the quality of complainant's work

and his relationship with them, complaints by his coworkers about the

quality of his work and his treatment of them, and a complaint from

a member of the regulated community." S1 stated that complainant

began demonstrating problems as early as August or September 2001.

His Mid-year evaluation reflected poor performance." S1 stated that

because of complainant's poor performance, "closer supervision and

additional other ecologist time for technical review was required to

ensure his work products could be released without embarrassing EPA or

confusing project managers." Furthermore, S1 stated that complainant

did not take advantage of assistance offered to him and did not make

any attempt to improve his performance.

The record reflects that one of the two Acting Supervisors (AS1) stated

that he had issues with complainant's performance and attendance.

AS1 further stated that while the agency had an honor system for time

and attendance, complainant would arrive at work late and leave early

frequently. AS1 stated that after he spoke to complainant about his

attendance, complainant "told me that he was having personal family

problems but it appeared to me that complainant took advantage of the

situation." AS1 stated that he received complaints from employees whom

complainant was supposed to support in his work. Specifically, AS1

stated that employees "told me they could not depend on the quality of

his work, or that it would be done on time. I was told he was late and

lacked in quality." AS1 stated that a named employee requested not to

be assigned to work on a project with complainant "because of previous

problems with complainant's work." AS1 stated that he attempted to

encourage complainant to work with a named employee because he is

an expert Ecologist. AS1 stated that WMB staff and managers "get

support from [the Ecologist] when we require expert technical advice

on ecological risk issues." AS1 stated, however, complainant "did not

attempt to avail himself of any resources."

Regarding claim 4, S1 stated "I never initiated a PIP for the complainant,

nor did complainant's acting supervisors."

Regarding claim 5, S1 stated that after complainant requested 28 days of

Leave Without Pay from March 10, 2003 to April 7, 2003, she told him that

if he had a legitimate need, he "should provide some sort of documentation

of that need and his request would be considered." S1 stated that because

complainant never produced any documentation concerning his request,

she denied his request. Further, S1 stated that complainant claimed

he needed the time to deal with a custody hearing for his children,

she informed him "I would be happy to entertain individual requests

when he knew his court dates." S1 stated that during the relevant time,

complainant "had a negative balance of -25 hours from leave advanced."

S1 stated that instead of providing her with specific court dates,

complainant sent a memorandum to her supervisor "to appeal my decision."

S1 stated that her supervisor supported her decision that complainant

was required to provide her specific court dates before approving his

individual requests.

S1 stated that when complainant did not report to work on March 10, 2003,

she sent him a letter "in which I reiterated that complainant did not have

approved annual leave or sick leave." S1 stated that after complainant

reported to work, she sent him an e-mail requesting documentation of his

absence. S1 stated that because complainant did not provide documentation

for a medical emergency, complainant's leave status for his absence from

March 10 to March 14, 2003 "was then reported as Absent Without Leave."

Disparate Treatment

A claim of disparate treatment is examined under the three-party analysis

first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792

(1973). For complainant to prevail, he 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 Department of the Navy,

EEOC Petition No. 03900056 (May 31, 1990).

The Commission finds that the agency articulated legitimate,

non-discriminatory reasons for its actions. Complainant has not shown

that the agency's articulated reasons, as discussed above, were a pretext

for discrimination.

Harassment

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). It is also well-settled that harassment based on an

individual's prior EEO activity is actionable. Roberts v. Department

of Transportation, EEOC Appeal No. 01970727 (September 15, 2000).

A single incident or group of isolated incidents will generally not

be regarded as discriminatory harassment unless the conduct is severe.

Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether

the harassment is sufficiently severe to trigger a violation of Title

VII must be determined by looking at all of the circumstances, including

the frequency of the discriminatory conduct, its severity, whether it is

physically threatening or humiliating, or a mere offensive utterance, and

whether it unreasonably interferes with an employee's work performance.

Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement

Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002

(March 8, 1994) at 3, 6. The harassers' conduct should be evaluated

from the objective viewpoint of a reasonable person in the victim's

circumstances. Enforcement Guidance on Harris v. Forklift Systems,

Inc., EEOC Notice No. 915.002 (March 8, 1994).

Applying these principles to the facts in this case, we conclude that

the record does not support a determination that the alleged incidents

constituted a discriminatory hostile work environment.

The agency's final decision finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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), 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 19848,

Washington, D.C. 20036. 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 (S0900)

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 (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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

May 16, 2007

__________________

Date

1 The record reflects that on March 20, 2003, complainant resigned from

agency employment.

2 We note that parental status is not covered by the Federal regulations

that this Commission enforces. See 29 C.F.R. � 1614.101.

3 For ease of reference, the Commission has identified these incidents

as claims a - f.

4 On appeal, complainant does not challenge the partially dismissed

claims; therefore, we will not address these issues herein.

5 The Commission notes in her affidavit, S1 inadvertently identified the

date that complainant submitted his application as December 23, 2003,

instead of December 23, 2002.

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0120071685

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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