0120102028
09-14-2010
Alexander Juarez, Complainant, v. Shaun Donovan, Secretary, Department of Housing and Urban Development, Agency.
Alexander Juarez,
Complainant,
v.
Shaun Donovan,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 0120102028
Hearing No. 450-2009-00329X
Agency No. HUD 00100-2008
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's March 8, 2010 final order 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.
BACKGROUND
During the period at issue, Complainant was employed as a Revitalization Specialist, GS-13, at the Agency's Office of Public Housing in Dallas, Texas.
On May 29, 2008, Complainant filed the instant formal complaint. Therein, Complainant alleged that he was subjected to systemic discrimination, harassment and a hostile work environment on the bases of national origin (Hispanic), sex (male), age (over 40), and in reprisal for prior EEO activity when:
1. on March 18, 2008, without proper notification or official representation, he was issued a written directive regarding 'professional behavior;'
a. the Agency failed to provide him with the minimum number of days to respond, both orally and in writing;
b. he was scheduled to meet with the Fort Worth Public Housing Director at 2:30 p.m., however, he showed up at 10:00 a.m. to conduct the meeting which is the time Complainant normally engages in union activities (i.e. meetings, phone conferences, etc). Due to these pre-scheduled union activities of which the Director was aware, his representative, a union official, was unable to attend the meeting;
c. he was not apprised of the issues and was informed by the Director that there was no agenda for the meeting, when the agenda was to issue the written directive to him;
d. despite his written requests, he was denied copies of all documents relative to the charges;
2. around January 2008, one of his co-workers allegedly used government time and equipment to conduct a personal background check on him;
3. around January 2008, he was excluded from two meetings in Dallas which was conducted by the Fort Worth Regional Director. Complainant also alleged that he was excluded from other meetings as indicated below:
a. on March 26, 2008, he was excluded from attending or participating via teleconference, a meeting conducted by the Fort Worth Public Housing Director;
b. on April 23, 2008, he was excluded from a meeting and advised that "there were phone difficulties," and "the agency did not have a power chord for the call;"
c. he stated that upon "threat of being escorted out by Federal Marshalls," he was not allowed to attend any meetings in Fort Worth unless personally approved by the Fort Worth Public Housing Director;
4. on April 16, 2008, he received an email from the Fort Worth Public Housing Director inquiring as to why he did not attend the morning Asset Management Training in Fort Worth. In a follow up e-mail, the Director delegated authority to his Deputy to approve his training which he alleged violates an "EEOC 2005 agreement."
5. around January 2008, he alleged that the actions by the Agency to reduce the Dallas Office have contributed to the hostile working environment toward him as a union leader; and
6. on February 8, 2008, his co-worker [named female co-worker] entered his cubicle and angrily announced that "she did not have time for the Hispanic crap that she ha[d] been receiving on her computer."
On June 17, 2008, the Agency issued a partial dismissal. Therein, the Agency accepted claims 1 - 4 for investigation. However, the Agency dismissed claims 5 - 6 for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1).
By letter dated June 27, 2008, Complainant requested that the instant formal complaint be amended to include the following claims:
that he was subjected to systemic discrimination, harassment and a hostile work environment on the bases of national origin, sex, age, and in reprisal for prior EEO activity when1:
7. he was retaliated against following the $24 million lawsuit that the American Federation of Government Employees (AFGE) Union won against the Agency;
8. around January 2008, he alleged that the actions by the Agency to reduce the Dallas Office have contributed to the hostile work environment towards him as a union leader; and
9. on February 8, 2008, his co-worker [named female co-worker] entered his cubicle and angrily announced that 'she did not have time for the Hispanic crap that she ha[d] been receiving on her computer.' Complainant alleged that this was why he was issued the written directive on March 18, 2008.
On August 11, 2008, the Agency granted Complainant's request to have the instant formal complaint amended by including claims 7 - 9.
Following the hearing held on December 16, 2009, the AJ issued a decision on March 22, 2010, finding no discrimination concerning claims 1 - 4 and 7 -9. The AJ found that Complainant did not establish a prima facie case of national origin, sex, and age discrimination. Specifically, the AJ found that Complainant failed to demonstrate that he was treated differently from similar situated individuals outside his protected classes. However, the AJ found that Complainant established a prima facie case of reprisal discrimination concerning the March 18, 2008 written directive (claim 9). The AJ nevertheless found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. The AJ further found that Complainant did not establish that more likely than not, the Agency's articulated reasons were a pretext to mask unlawful discrimination.
Regarding complainant's harassment claim, the AJ found that the evidence in the record did not establish that complainant was subjected to harassment based on national origin, sex, age and retaliation. Specifically, the AJ found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
Regarding claim 1, the Director (D1) testified that he was contacted by the Deputy
Regional Director who indicated that a named female co-worker (CW) had filed a complaint against Complainant for asking questions that were unwelcome and of a sexual nature and that "I needed . . . to present [Complainant] with guidance that HUD has with regard to appropriate behavior. It was incumbent to do that on a schedule that didn't wait too long. And so we - - I had talked to you that morning. I - - I sent you an e-mail about coming over at 2:15. My recollection was I talked to you that morning to make sure that you would be in the office that day and I came over."
D1 acknowledged telling Complainant that there was no agenda for the meeting. D1 stated, however, he made Complainant aware of the issues at the meeting. Specifically, D1 stated that during the meeting, Complainant "was made fully aware of the charge of sexual harassment made by a female coworker against him." D1 stated that Complainant was not offered union representation "because there was no discipline. There was no reason to have a union representative with him. It was a meeting between an employee and an employee's supervisor that was not anticipated to result in any kind of discipline whatsoever and it did not." D1 stated that he did not conduct an investigation into CW's allegations. Instead, D1 stated that he told Complainant that CW alleged that he made unwelcome remarks of a sexual nature and that he should not do so again in the future. D1 stated that he placed Complainant on notice that if the allegations were true and occurred again, "that there could be discipline result."
Further, D1 denied that it was not an admonishment but a directive which stated policy and was not part of Complainant's permanent record to his knowledge. D1 stated "my recollection is that the human resources department drafted the - - the directive. I looked at it. I believe I made a couple of small changes and I signed it and presented it to [Complainant]." D1 stated that he never made a determination that CW's sexual harassment allegations against Complainant were true.
D1 stated that the meeting took place earlier than planned because of inclement weather. D1 stated "I originally indicated that I was going to come after lunch. I believe - - as I recall, the weather that day . . . was not good and was getting progressively worse and so I thought I'd come over and get it out of the way. I - - I called to establish that you were in the office. I got in the car and I drove over. I got here at 10:00. You indicated that you had a meeting with the union. I said, fine, I'll wait. Just like I did last week, when you were instructed to show up in the office last Tuesday on your work and you didn't show up till 10:30. When you got there, you said you had a union meeting. And I said, fine, I'll wait till you're done and I did. And I did the same thing that - - I offered you the same thing that day. That day, you indicated that, no, you didn't want to make me wait and I said, fine, it's up to you. So we had our conversation."
With respect to Complainant's allegation that despite his written requests, he was denied copies of all documents relative to the charges, D1 denied it.
Regarding claim 2, D1 stated that Complainant never told him that CW performed a background check on him.
Regarding claim 3, D1 stated he sent an email to all employees concerning the March 26, 2008 meeting. Specifically, D1 stated "we just had a conversation with [Complainant] last week that I reminded you that you were welcome anytime to come to Fort Worth, to go to the credit union, to go to the union meetings, to do whatever you needed to do, but that if you're going to come into the PIH work space, to let me know in advance and I would authorize it or not."2 D1 acknowledged that there were occasional telephone difficulties in which Complainant could not attend meetings although he stated that Complainant was on several phone conferences.
Regarding claim 4, D1 testified that prior to April 13, 2008, Complainant "was notified at my request by my deputy [a named Deputy], about the training to be held. I was out of town on HUD business so the notice was provided on my behalf by my deputy. [Complainant] subsequently sent me an e-mail indicating that he would attend the training the next day, but that since I did not invited him personally, he did not attend the first day. He did not accept the invitation from my deputy as valid. In the same e-mail, he thanked me."
Further, D1 stated that subsequently, he sent an e-mail to Complainant apologizing for any confusion and "indicated that in the future, he could accept the invitation of my deputy because I did not want him to miss a training opportunity." With respect to Complainant's allegation that D1 violated the EEO 2005 settlement agreement, D1 denied it.
Regarding claim 7, D1 stated "I have no specific knowledge about any AFGE litigation against the Agency."
Regarding claim 8, D1 stated that Complainant "has made allegations of harassment, fraud, conspiracies, hostile environments continually for many years. These claims were made before I came to PIH and have continued to this date. I am unaware of a single occasion where [Complainant's] complaints have been validated by any court of competent jurisdiction...I am unaware of any specific complaints by [Complainant] in January of 2008, related to harassment or a hostile work environment that merited review."
Regarding claim 9, D1 testified that during the relevant period, CW never told him that she did not want to receive any more Hispanic "crap" from Complainant. CW stated that she was not upset with the e-mails she received from Complainant concerning Hispanic employees. CW stated, however, she asked Complainant to remove her from the e-mail list because it had become a public forum for personal grievances against the Agency that she did not want to have any part of. CW further stated that she still wanted to be part of the Hispanic committee. Finally, CW stated that she still feels threatened by Complainant.
On appeal, Complainant argues that the AJ erred in finding no discrimination because of "procedural flaws." Complainant further argues that he has new evidence "which were clearly omitted and or misrepresented by the Agency to hide the continued retaliatory and hateful actions of a Caucasian Fort Worth Public Housing Director, [D1] and HUD Officials, as reflected by Complainant previous EEOC/Discrimination claims toward the lone, Hispanic, a College Graduate, Naturalized American Citizen, Viet-Nam Era Veteran, Public Housing Employee in that Fort Worth Public Housing Office, Outstation in the Dallas HUD Office [emphasis in original]."
ANALYIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
Complainant has offered no persuasive arguments on appeal regarding the AJ's findings on the merits. The AJ's decision is well-reasoned, and the assessment that the Agency provided legitimate, non-discriminatory reasons for its actions, that were not pretextual, is abundantly supported by the record, as referenced above. Therefore, after a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order concerning claims 1 - 4 and 7 - 9, because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.3
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 (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 (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
September 14, 2010
__________________
Date
1 For ease of reference, the Commission has re-numbered Complainant's amended claims as claims 7 - 9.
2 PIH is an acronym for Public and Indian Housing.
3 On appeal, complainant does not challenge the June 17, 2008 partial dismissal issued by the agency regarding claims 5 - 6. Therefore, we have not addressed these issues in our decision.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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