0120120861
10-10-2014
Complainant v. Jeh Johnson, Secretary, Department of Homeland Security, Agency.
Complainant
v.
Jeh Johnson,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120120861
Hearing No. 420-2011-00130X
Agency No. HS-ICE-1788-02010
DECISION
Complainant timely filed an appeal from the Agency's September 22, 2011, 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 EEOC Administrative Judge (AJ) properly dismissed Complainant's case on the ground that Complainant is not an employee of the Agency, and (2) whether the Agency properly found that it had not discriminated against Complainant, as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Protective Service Officer (PSO) at the Federal Building in Mobile, Alabama. Complainant, who was assigned to the U.S. Army Corps of Engineers (COE) access control post, performed work under a contract between the Agency's Federal Protective Service (FPS) and a private company (Contractor). He worked a 1:30 p.m. to 9:30 p.m. shift. His first-level supervisor was a Contractor sergeant (C-1), and his second-level supervisor was a Contractor captain (C-2).
On November 12, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Black), sex (male), and age (46) when:
1. on June 25, 2010, a Federal Protective Service Law Enforcement Security Officer chastised him;
2. on July 1, 2010, he received one-on-one training on the x-ray machine; and
3. on July 26, 2010, his work-shift changed.
By letter dated February 1, 2010, the Agency accepted the complaint for investigation.
The investigation disclosed that, on the evening of June 25, 2010, Complainant was the only security guard assigned to his post. At approximately 8:15 p.m., while Complainant was away from his post on his lunch break, C-1 called him to say that the FPS Inspector (FPS-1) wanted to know Complainant's location. Complainant then went to FPS-1's office and told FPS-1 that he was on his lunch break. According to Complainant, FPS-1 stated that janitorial workers were moving in and out of the building and directed Complainant not to leave his post while activity was occurring.
Subsequently, on July 1, 2010, FPS-1 asked an Officer from the Transportation and Security Administration (TSA) to provide training to Complainant on the x-ray machine, magnetometer, and handheld wand. In a July 15, 2010, e-mail to C-2 and the Agency's Area Commander (FPS-2), FPS-1 recommended that Complainant be removed from his post but not terminated. According to the e-mail, the TSO Officer watched Complainant operate the devices three times, Complainant failed all three attempts, and the TSO Officer said that Complainant was too intense and could not focus on the proper screening procedures. FPS-1 stated in the e-mail that he spoke with Complainant in the presence of C-1 and C-2 and informed Complainant that he was recommending that Complainant be removed from the post because of his inability to screen visitors proficiently. He also stated that "[t]he other PSO's in this post had gone through the same screening procedures that day and [were] able to properly screen the visitors."
FPS-2 forwarded the e-mail to the Contractor's Contract Manager (C-3) and asked C-3 to take action on FPS-1's request. FPS-2 stated that Complainant apparently "is a liability to the COE access control post and needs to be reassigned within the Mobile area based on" FPS-1's e-mail. In a July 16, 2010, e-mail to C-3 and others, C-2 noted that she had announced Complainant's post assignment for bid, stated that a new PSO would be assigned to the post after the July 23 close of the bidding process, and asked whether she should place another PSO at the post in the interim. In a July 20, 2010, e-mail to FPS-1 and FPS-3, C-2 stated that she had removed Complainant from his post and asked whether she needed to remove him from the building or could reassign him to a post as a "rover."
On July 22, 2010, Complainant and his union representative filed a grievance challenging Complainant's removal from his bid post. The grievance asserted that Complainant was removed through no fault of his own and that it was the company's responsibility to train employees properly. Complainant asked to be trained properly and to be returned to his bid post. C-3 denied the grievance on October 1, 2010. He stated that the Contractor was willing to request training for Complainant but that there was no guarantee that Complainant could return to his bid post. C-3 noted that the client asked the company to remove and reassign Complainant, that the post had been bid and awarded, and that the Contractor could not violate the collective bargaining agreement by disregarding the bidding process.
In his affidavit, Complainant stated that he did not have an official lunch time, that an officer could take a lunch break after normal working hours whenever he or she deemed necessary, and that he informed FPS-1 that nothing in the post orders required an officer to remain at the post after hours. Complainant alleged that FPS-1 attempted to recite the post orders to Complainant but was unsuccessful because FPS-1 did not know what was in the post orders. Complainant also alleged that FPS-1 arranged the July 1, 2010, training because FPS-1 wanted to "redeem his integrity" after Complainant made him appear incompetent regarding the post orders. He asserted that the co-worker (Employee 1) who was working with him on the day of the training was not required to undergo the training. He also asserted that the training was irregular because it occurred during normal work hours when traffic volume was at its peak and that the TSA Officer stated that the x-ray machine was out of date and inadequate. Complainant alleged that it was "predetermined" that he would fail the training.
In addition, Complainant stated that, on July 26, 2010, he was officially taken off his post and his post was put out for bid. According to Complainant, the bid was given to someone who has less seniority than Complainant has. Complainant stated that a captain or sergeant assigns work schedules and that individuals who received shift bids through the union have set days off and set shifts. Complainant also stated that he was working as a "floater," that he did not have a set shift, that his hours were "drastically reduce[d]" because of his removal from his bid post, and that it has "a profound effect on [his] income." Stating that he "filed a grievance with the union and the human resource division, as well as the local EEOC," Complainant alleged that "they were powerless to do anything about it because it was against an FPS official." He also alleged that FPS-1 harassed him because FPS-1 had a personal vendetta against him.
In response to the EEO Investigator's request that he identify similarly-situated employees who received more favorable treatment, Complainant identified the following individuals: a Black male in his early seventies (Employee 1), a Black male in his mid-fifties (Employee 2), a Black male in his early fifties (Employee 3), and a Black female in her early fifties (Employee 4). He asserted that none of the identified individuals received specialized x-ray training or were harassed. As an attachment to his formal complaint, Complainant submitted July 26, 2010, Contractor "Disclosure Statements" in which the four comparators state that they did not receive training on the x-ray machine from a TSA representative, an FPS employee, or FPS-1 during 2010.
In his affidavit, FPS-1 stated that he performs inspections, monitors the performance of contractor guards, meets with agency officials concerning guard-service contracts, and provides technical assistance to agency officials and security managers. He stated that, on June 25, 2010, he gave Complainant a verbal warning for abandoning his post and told Complainant not to leave his post when any activity was going on at the post. According to FPS-1, janitorial workers were going in and out of the building, FPS-1 called C-1 to inquire about Complainant's whereabouts, and C-1 informed him that Complainant was eating lunch.
FPS-1 stated that, during his routine site inspections, he observes all PSO's who operate the x-ray machine and magnetometer. He asserted that Complainant could not handle the screening process properly and could not operate the x-ray machine effectively. In addition, he reiterated the information that he provided in his July 15, 2010, e-mail to C-2 and FPS-2. Further, FPS-1 asserted that Employee 2 and Employee 4 were at the post on July 1, 2010, and that they were "not able to do the TSA training, but [FPS-1] had gone through the same screening procedures drills that day in different times and they [were] able to properly screen the visitors."
In addition, FPS-1 stated that he recommended that Complainant be removed from the post because of his inability to handle the screening process and basic operating functions properly. According to FPS-1, Complainant subsequently was posted at the Federal Building during the afternoon and evening shifts.
FPS-2 stated in his affidavit that "guards have the crucial and highly visible role in support of FPS's mission of providing a safe environment in federal buildings by processing visitors, performing package inspections and operating security equipment." He also stated that, as the Contract Officer Technical Representative, he worked closely with the Contractor's Contract Manager to resolve performance issues. He further stated that FPS-1 was "responsible for monitoring the guards' overall performance to insure contract compliance." According to FPS-2, all guards receive eight hours of training on the x-ray and magnetometer machines during their initial, basic training. He asserted that there was "nothing inappropriate about [Complainant] receiving one-on-one x-ray training." In addition, FPS-2 stated that the Contractor had a collective bargaining agreement in place and that the Agency was not involved in guards' work-shift changes.
In his affidavit, C-3 stated that, although FPS-1 is not Complainant's supervisor, Complainant is expected to follow instructions from FPS inspectors. He noted, however, that FPS inspectors usually follow the chain of command and do not normally give instructions to security officers. C-3 stated that, at the time of the June 25, 2010, incident, there was no relief officer at the post. He further stated, "As a result, the officers are expected to take their breaks on-site, when it is not busy, and to return if they are needed." With respect to the July 1, 2010, training, C-3 stated that he received an e-mail from FPS-2 and that the e-mail contained FSP-1's description of the incident. To his knowledge, no other security officers received one-on-one training on that date. He stated that the contract required all security officers to receive eight hours of training on the x-ray machine and that Complainant underwent training conducted by an FPS trainer on September 6, 2008. C-3 also stated that he received a request from FPS to remove Complainant from the COE post and that he instructed C-2 to assign Complainant somewhere else.
In a June 25, 2010, e-mail to C-3, FPS-1, and others, FPS-2 stated that the Agency conducted two penetration tests at the COE on June 23, 2010. In one test, according to the e-mail, a PSO operating the x-ray machine was not sure how to operate the machine's controls and failed to identify a pipe-bomb training device. In the second test, a PSO could not operate a handheld wand correctly. The e-mail identified Employee 2 and Employee 4 as the PSO's involved in the tests.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the Report of Investigation and notice of his right to request a hearing before an EEOC Administrative Judge. Complainant timely requested a hearing.
On August 12, 2011, the Agency filed a Motion for a Decision without a Hearing. The Agency argued that Complainant was an employee of the Contractor, not of the Agency. It submitted several documents, including copies of Complainant's August 16, 2007, application for employment with the Contractor; the Contingent Job Offer for employment as a security guard that the Contractor extended to Complainant on August 16, 2007; a W-4 Employee's Withholding Allowance Certificate and a Contractor Policies Acknowledgement Signature Form that Complainant completed on August 16, 2007; "Statements of Earnings and Deductions" from the Contractor for the pay periods from November 16 to December 15, 2010; and a Contractor "Employee Information Form" for Complainant. The Agency also submitted a copy of Complainant's response to the Agency's Request for Admissions. Complainant wrote "True" after each of the 25 requests, including requests that he admit that he is a contract security guard, that the Contractor is his employer, that FPS is not his employer, that the Contractor pays his salary and provides health benefit and annual leave, and that the Contractor provides Complainant with a firearm, uniform clothing, and personal gear.
In addition, the Agency argued that Complainant did not establish that the Agency subjected him to discriminatory harassment. The Agency maintained that Complainant proffered no evidence that the incidents about which he complained were based on his race, sex, or age. The Agency further maintained that the incidents were not so severe or pervasive that they constituted harassment.
On September 22, 2011, the AJ dismissed Complainant's case on the ground that it failed to state a claim because Complainant was not an employee of the Agency. The AJ returned the case to the Agency for the issuance of a final decision.
The Agency subsequently issued a final decision stating that, although it could dismiss Complainant's complaint on procedural grounds, it would address the merits of the claim because the matter had been investigated. The Agency concluded that Complainant did not establish a prima facie case of discrimination because he was not an employee of the Agency. As a result, the Agency found that it had not discriminated against Complainant. This appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that FPS-1 made the decision to remove him from his post. He asserts that "FPS exercises absolute authority over the contract and those individuals working under the contract." Complainant also asserts that the Agency did not subject other guards to the same training that it required him to undergo.
In response, the Agency reiterates the arguments that it made in its Motion for a Decision without a Hearing. The Agency contends that Complainant is not an employee of the Agency and that it did not subject him to discrimination or harassment based on race, sex, or age.
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 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").
ANALYSIS AND FINDINGS
Dismissal of Hearing Request
The AJ dismissed Complainant's case on the ground that it failed to state a claim because Complainant was not an employee of the Agency. Commission Regulation 29 C.F.R. � 1614.109(b) permits Administrative Judges to dismiss complaints pursuant to 29 C.F.R. � 1614.107 upon an agency's motion to dismiss a complaint. 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. The Commission's regulations further provide that an agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she 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, 1614.106(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).
EEOC Regulation 29 C.F.R. � 1614.103(a) provides that complaints of employment discrimination shall be processed in accordance with Part 1614 of the EEOC regulations. EEOC Regulation 29 C.F.R. � 1614.103(c) provides that, within the covered departments, agencies and units, Part 1614 applies to all employees and applicants for employment.
The Commission has applied the common law of agency test to determine whether an individual is an agency employee versus a contractor. See Ma v. Dep't of Health and Human Serv., EEOC Appeal Nos. 01962389 & 01962390 (May 29, 1998) (citing Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 323-24 (1992).
The question of whether an employer-employee relationship exists is fact specific and depends on whether the employer controls the means and manner of the worker's work performance. This determination requires consideration of all aspects of the worker's relationship with the employer. Factors indicating that a worker is in an employment relationship with an employer include the following:
1. The employer has the right to control when, where, and how the worker performs the job.
2. The work does not require a high level of skill or expertise.
3. The employer furnishes the tools, materials, and equipment.
4. The work is performed on the employer's premises.
5. There is a continuing relationship between the worker and the employer.
6. The employer has the right to assign additional projects to the worker.
7. The employer sets the hours of work and the duration of the job.
8. The worker is paid by the hour, week, or month rather than the agreed cost of performing a particular job.
9. The worker does not hire and pay assistants.
10. The work performed by the worker is part of the regular business of the employer.
11. The worker is not engaged in his/her own distinct occupation or business.
12. The employer provides the worker with benefits such as insurance, leave, or workers' compensation.
13. The worker is considered an employee of the employer for tax purposes (i.e., the employer withholds federal, state, and Social Security taxes).
14. The employer can discharge the worker.
15. The worker and the employer believe that they are creating an employer-employee relationship.
This list is not exhaustive. Not all or even a majority of the listed criteria need be met. Rather, the determination must be based on all of the circumstances in the relationship between the parties, regardless of whether the parties refer to it as an employee or as an independent-contractor relationship. EEOC Compliance Manual Section 2: Threshold Issues � 2-III.A.l. at 2-25 and 2-26 (May 12, 2000) (available at www.eeoc.gov).
Under the Commission's Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms, EEOC Notice No. 915.002 (Dec. 3, 1997) (Enforcement Guidance on Contingent Workers), we recognize that a "joint employment" relationship may exist where both the agency and the staffing firm may be joint employers. Similar to the analysis set forth above, a determination of joint employment requires an assessment of the comparative amount and type of control the staffing firm (such as the Contractor) and the agency each maintains over a complainant's work. Baker v. Dep't of the Army, EEOC Appeal No. 01A45313 (Mar. 16, 2006). Thus, a federal agency will qualify as a joint employer of an individual if it has the requisite means and manner of control over the individual's work under the criteria above, whether or not the individual is on the federal payroll. Enforcement Guidance on Contingent Workers at Question 3. For example, an agency may be considered an employer of the worker if it supplies the work space, equipment, and supplies, and if it has the right to control the details of the work performed, to make or change assignments, and to terminate the relationship. Id. at Question 2.
In this case, the Contractor set Complainant's hours of work, paid Complainant's salary, withheld taxes, provided health benefits and annual leave, and provided Complainant with a firearm, uniform clothing, and personal gear. In addition, Complainant's first- and second-level supervisors were employees of the Contractor.
Other factors, however, indicate that the Agency was a joint employer of Complainant. Complainant performed work in the Federal Building, the work did not require a high level of skill or expertise, and the Agency provided the x-ray machine and other equipment that Complainant used on the job. Complainant's work was an integral part of the Agency's mission to provide a safe environment in federal buildings. Moreover, the Agency exercised such control over Complainant's job performance that FPS-1 monitored Complainant's performance and required him to undergo one-one-one training. Complainant was removed from his post upon FPS-1's recommendation.
Based on the legal standards and criteria set forth herein, we find that the Agency exercised sufficient control over Complainant's position to qualify as a joint employer for the purpose of the 29 C.F.R. Part 1614 EEO complaint process. We find, therefore, that the AJ erroneously concluded that Complainant was not an employee of the Agency. For the reasons explained below, however, we further find that, even when viewing the evidence in the light most favorable to Complainant, there is no genuine issue of material fact that any of the incidents at issue occurred because of Complainant's race, sex, or age. Accordingly, we find that the dismissal of Complainant's hearing request was harmless error.
Disparate Treatment
To prevail in a disparate treatment claim, 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 Construction 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, 411 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community 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 Center v. Hicks, 509 U.S. 502, 519 (1993). Complainant can do this by showing that the proffered explanations are unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256.
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 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 Servs., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In this case, the Agency has articulated legitimate, nondiscriminatory reasons for its actions. FPS-1 admonished Complainant on June 25, 2010, because Complainant was not at his post while janitorial workers were going in and out of the building. He asked the TSA Officer to provide one-on-one training to Complainant because Complainant could not handle the screening process properly and could not operate the x-ray machine effectively. In his July 15, 2010, e-mail to C-2 and FPS-2, FPS-1 recommended that Complainant be removed from his post because his of inability to screen visitors proficiently.
Viewing the evidence in the light most favorable to Complainant, we find that there is no genuine issue of fact regarding whether the Agency's articulated reasons are pretextual. Complainant acknowledged that he was on a lunch break when FPS-1 was looking for him on June 25, 2010, and that he did not perform satisfactorily during the July 1, 2010, training. He has proffered no evidence that FPS-1 admonished him for not being at his post, arranged for the training, or recommended his removal from the post because of his race, sex, or age. Complainant stated that four employees received more favorable treatment than he received, but all of them were of the same race as Complainant, three of them were males, and all of them were older than he. The Agency's more favorable treatment of those employees indicates that the Agency's actions toward Complainant were not motivated by considerations of race, sex, or age. Similarly, that the Agency did not require Employee 2 (a Black male in his mid-fifties) and Employee 4 (a Black female in her early fifties) to undergo training after the penetration drill likewise indicates that Complainant's race, sex, and age were not the reasons behind Complainant's one-on-one training.
Complainant alleged that FPS-1 had a vendetta against him and that FPS-1 arranged the one-on-one training because Complainant challenged him regarding the post orders. It is not enough, however, for Complainant to show that FPS-1 harbored ill will toward him. Complainant must proffer evidence that the ill will was related to his race, sex, or age. He has not done so here. Accordingly, viewing the evidence in the light most favorable to Complainant, we find that the evidence does not establish that the Agency discriminated against Complainant on the basis of race, sex, or age when he was chastised for leaving his post, he was required to undergo one-on-one training, and his work shift changed.
Hostile Work Environment
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings 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 [complainant's] employment and create a hostile or abusive working environment." 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, 510 U.S. at 21-22. Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all 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." Id. at 23.
To establish a claim of harassment, Complainant must show that: (1) he is a member of the statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. � 1604.11. Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [Complainant's] employment and create an abusive working environment." Harris, 510 U.S. at 21. The harasser's 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 (Mar. 8, 1994) (Enforcement Guidance on Harris). The evaluation "requires careful consideration of the social context in which particular behavior occurs and is experienced by its target." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). The anti-discrimination laws are not a "general civility code." Id.
In this case, the record does not support a finding that the Agency subjected Complainant to discriminatory harassment. As noted above, the evidence does not establish that the incidents alleged by Complainant occurred because of his race, sex, or age. A finding of discriminatory harassment is precluded based on our determination that Complainant did not show that the Agency's actions were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Accordingly, we find that Complainant has not demonstrated that the Agency subjected him to a hostile work environment based on race, sex, or age.
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 and its finding of no discrimination.
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
October 10, 2014
Date
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0120120861
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120120861