0120110333
01-19-2012
Howard R. Baum, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency.
Howard R. Baum,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Citizenship and Immigration Services),
Agency.
Appeal No. 0120110333
Agency No. HS-09-CIS-007547
DECISION
On October 8, 2010, Complainant filed an appeal from the Agency’s
September 29, 2010, final decision concerning his equal employment
opportunity (EEO) complaint alleging employment discrimination in
violation of 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
1 and 2 for untimely EEO Counselor contact; and (2) whether Complainant
established that the Agency subjected him to discrimination and hostile
work environment harassment on the bases of race and reprisal for prior
protected EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant
worked as a GS-12 Level II Immigration Services Officer (ISO) in the
Naturalization Section of the Agency’s District Office in New York,
New York. Complainant, who has a legal background, began working for
the Agency in 1975. Complainant’s First Level Supervisor was the
Supervisory ISO (S1). Complainant’s Second Level Supervisor was the
Site Manager of the Naturalization Section (S2). Complainant’s Third
Level Supervisor was the Section Chief of the Naturalization Section (S3).
S1, S2, and S3 began supervising Complainant in or about October 2007.
On July 27, 2009, Complainant contacted an EEO Counselor. On October
29, 2009, Complainant filed an EEO complaint alleging that the Agency
subjected him to discrimination and hostile work environment harassment
on the basis of age (65) when:
1. In early 2008, S3 and S2 moved him from an office to a cubicle in
the clerical pool;
2. In August 2008, S3 and S2 assigned him to process all the
Naturalization appeals for the entire New York District Office;
3. In October 2008, S3 stated during a staff meeting, “If only older
officers would retire, we could hire more people;”
4. On July 23, 2009, S3 and S2 changed his duties from high-level
Naturalization responsibilities that he had been performing for 15
years to routine daily interviews, which are normally performed by less
senior ISOs;
5. On October 27, 2009, S1 rated him “Fully Successful” for the 2009
rating period, a lower rating than his previous performance evaluations.1
On November 13, 2009, the Agency issued a letter accepting claims 4
and 5 for investigation, but dismissing claims 1-3 for untimely EEO
Counselor contact.
During the investigation, Complainant attempted to add the basis
of reprisal to claim 5. Specifically, Complainant averred, “I am
alleging reprisal, and I believe that the ratings were manipulated in
such a manner as to get a pre-determined outcome … It should be noted
for the record that [S3] and [S2] became aware of my EEO complaint prior
to my latest lowest performance rating.”
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the ROI and notice of his right to request a hearing before
an EEOC Administrative Judge. In accordance with Complainant’s request,
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 age discrimination as alleged.2
In its decision, the Agency first affirmed its prior dismissal of
claims 1 and 2 for untimely EEO Counselor contact. Next, the Agency
analyzed claims 4 and 5 under a disparate treatment framework and found
that Complainant failed to show that the legitimate, nondiscriminatory
reasons articulated by management were a pretext for age discrimination.
Finally, the Agency analyzed Complainant’s complaint under a harassment
framework and found that Complainant failed to establish that management
subjected him to a hostile work environment based on age.
CONTENTIONS ON APPEAL
On appeal, Complainant contended that the Agency erred in procedurally
dismissing claims 1 and 2 and that the Agency erred in finding
no discriminatory harassment. Regarding the procedural dismissal,
Complainant argued that claims 1 and 2 were acts of harassment that were
part of one continuous harassment claim, not discrete acts. In addition,
Complainant asserted that he did not contact an EEO Counselor when
claim 1 occurred because, while “puzzling and degrading … this
single individual act of harassment would not have been a viable age
discrimination complaint.” Further, Complainant noted that the
Agency’s decision did not address claims 1 and 2 even as background
information. Regarding the merits of his harassment claim, Complainant
argued that S3 and S2 did not provide credible testimony. Specifically,
Complainant asserted that S3 gave false testimony about claim 3 because
S3 denied making such a statement even though two co-workers testified
that S3 made the statement. In addition, Complainant asserted that S2
gave false testimony about claim 2.
In response, the Agency argued that when analyzed as background evidence,
Complainant’s discrete acts in claims 1 and 2 do not support his
age-based hostile work environment harassment claim. Moreover, the
Agency asserted that claim 3 was not credible because Complainant’s
co-workers testified either that they did not hear the statement or that
the statement was not made in the context described by Complainant.
Finally, the Agency reiterated the final decision’s analysis of
Complainant’s complaint.
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 Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614,
at Ch. 9, § VI.A. (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”).
Untimely EEO Counselor Contact – Claims 1 and 2
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the EEO Counselor
within 45 days of the date of the matter alleged to be discriminatory or,
in the case of a personnel action, within 45 days of the effective date
of the action. The Commission has adopted a “reasonable suspicion”
standard (as opposed to a “supportive facts” standard) to determine
when the forty-five (45) day limitation period is triggered. See Howard
v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus,
the time limitation is not triggered until a complainant reasonably
suspects discrimination, but before all the facts that support a charge
of discrimination have become apparent.
The Supreme Court has held that a complaint alleging a hostile work
environment will not be time barred if all acts constituting the claim
are part of the same unlawful practice and at least one act falls within
the filing period. See Nat’l R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 117 (2002). The Court further held, however, that “discrete
discriminatory acts are not actionable if time barred, even when they
are related to acts alleged in timely filed charges.” Id. at 113.
Claims involving events such as termination, failure to promote, denial
of transfer, or refusal to hire are clearly defined and are considered
to be discrete acts. Id. at 114. With a discrete act, each incident of
discrimination constitutes a separate actionable “unlawful employment
practice.” Id. Finally, the Court held that such untimely discrete
acts may be used as background evidence in support of a timely claim. Id.
Upon review of the record, we find that Complainant’s July 27, 2009 EEO
Counselor contact was untimely as to claims 1 and 2. While Complainant
identified claims 1 and 2 as part of his hostile work environment
harassment claim and characterized them as “acts of harassment,” we
find that the Agency properly determined that they were discrete events
requiring individual consideration. See Frisby v. Dep’t of Justice,
EEOC Appeal Nos. 0120071943 & 0120072484 (Aug. 30, 2007) (finding that
assignment to an office space was a discrete act); Leonardo v. Pension
Benefit Guaranty Corp., EEOC Appeal No. 01981056 (Jan. 5, 2000) (finding
that assignment to substandard office space was a discrete act); Dopler
v. Dep’t of Health & Human Services, EEOC Appeal No. 01962748 (Dec. 17,
1996) (finding that denial of private office space was a discrete act).
Both the alleged discriminatory acts occurred in 2008, but Complainant
did not contact an EEO Counselor until July 27, 2009, which was well
beyond the 45-day regulatory limit.
Complainant presented no evidence that he did not reasonably suspect
discrimination regarding claims 1 and 2 until the 45-day period that
preceded July 27, 2009. On the contrary, the record indicates that with
regard to claims 1 and 2, Complainant reasonably suspected discrimination
long before July 27, 2009, but chose not to initiate the EEO complaint
process. According to the EEO Counselor’s Report, Complainant
stated that he did not seek EEO counseling sooner because he thought
the situation would improve, but instead it became progressively worse.
In addition, Complainant contended on appeal that he did not contact an
EEO Counselor when claim 1 occurred because he believed that it was not
a viable age discrimination complaint.
Accordingly, we find that claims 1 and 2 should be dismissed for untimely
EEO Counselor contact and considered only as background evidence in
support of Complainant’s harassment claim (claims 3-5).
Claim 3
Although the Agency did not formally accept claim 3 for investigation,
the record contains affidavit testimony from Complainant, management,
and Complainant’s co-workers (C1 – 55 years of age, C2 – 76 years
of age) regarding S3’s alleged statement
Complainant averred that, in response to questions by term employees
if their positions would become permanent, S3 made a statement to the
effect of, “If only older officers would retire, we could hire more
people.” Complainant averred that that C1 and C2 could verify that
S3 made the statement.
In contrast, S3 denied making the alleged statement. S3, however,
acknowledged that officers had asked her how they could become permanent
and she had told them that positions became available when people retired,
transferred, or received a promotion. Similarly, S2 and S1 averred that
they did not hear or recall S3 making the alleged statement.
When asked about the alleged statement, C1 and C2 averred that they
did not recall S3 making the alleged statement. C1 and C2, however,
averred that S3 referenced retirement in the context of the availability
of permanent positions for term employees, but that they did not interpret
S3’s comments in a negative way. Specifically, C1 averred:
[S3] said something one time. She was addressing employment issues
concerning the interns and the possibilities of permanent positions …
She mentioned that there were some employees who were eligible to retire
but were not going to retire for whatever reason. Although I don’t
remember her statement word for word, I don’t feel she meant anything
by this. I feel that she was just implying that these positions would
not be available. She was just stating a fact … Everyone might read
into it differently, but I didn’t perceive it as a threat.
In addition, C2 averred:
I don’t recall [S3] … making that particular statement. [S3] did say
something along those lines, I think in relation to the amount of officers
we have at present. We have 70 officers and the number of officers that
are permanent is 40, so there is a disparity in the number of permanent
positions available for officers. [S3] used the word retirement in the
sense that there were people eligible to retire but for whatever reason
some were not doing so at this time. The way I read the comment was that
this time was but just one reason additional permanent positions were not
available at this time. Her comments did not appear to have been said in
a derogatory way. I personally did not take it as a threatening remark.
Upon review of the above testimony, we find that Complainant failed to
show that, more likely than not, S3 stated, “If only older officers
would retire, we could hire more people.” In so finding, we note that
C1, C2, S1, and S2 all denied hearing S3 make the statement alleged
by Complainant. While C1 and C2 (both similar in age to Complainant)
testified that S3 made comments referencing retirement and the
availability of permanent positions, we emphasize that C1 and C2 did
not interpret S3’s statements in a derogatory or threatening way.
Disparate Treatment – Claims 4 and 5
Complainant alleged several adverse employment actions as part of his
harassment claim. We will first analyze claims 4 and 5 under a disparate
treatment framework.
To prevail in a disparate treatment claim such as this, a complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A 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, a 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, a 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.
Agency’s Legitimate, Nondiscriminatory Reasons – Claim 4
Assuming, arguendo, that Complainant established a prima facie case
of age discrimination, we find that the Agency articulated legitimate,
nondiscriminatory reasons for changing Complainant’s duties.
In his affidavit, Complainant stated that, prior to being assigned
to conduct Adjustment interviews on July 23, 2009, he was performing
the following high-level duties: (a) training all new hires for the
Naturalization Section on law and procedure regarding citizenship
matters; (b) giving periodic updating training to all the officers in
the Naturalization Section; (c) handling more complex and sensitive
Naturalization issues in consultation with management; (d) preparing
answers for monthly meetings between the Agency, local community groups,
and the American Immigration Lawyers Association; (e) reviewing fee
waiver applications; (f) being the official point of contact for all
N-648 medical waivers; and (g) consulting with officers and supervisors
on legal and procedural problems regarding citizenship applications.
Regarding his assignment to conduct Adjustment interviews, S3 averred
that Complainant was one of 15 ISOs (10 of whom were GS-12 Level II ISOs)
assigned to conduct Adjustment interviews and that the Naturalization
Section was helping the Adjustment Section meet its yearly goals.
In addition, S2 averred that management made the assignments based on
knowledge, experience, and Service needs, and that Complainant was a
Level II ISO like the other Level II ISOs assigned to the interviewing.
Regarding duties (a) and (b), S3 averred that any Level II ISO can
conduct training and S2 averred that another ISO was designated as a
trainer in 2008. Regarding duty (c), S3 averred that prior management
used a team of ISOs to review such cases but that, several years ago,
current management created two GS-13 Level III Senior ISO positions to
handle the most complicated cases. Regarding duty (d), S3 averred that
any Level II ISO can prepare answers, but that she usually responds to
most of the questions herself. Regarding duties (e) and (f), S3 averred
that these duties were assigned to other GS-12 Level II ISOs because
Complainant would not be able to review the waivers while being assigned
to conduct Adjustment interviews. Regarding duty (g), S3 averred that
the two GS-13 Level III Senior ISOs are assigned to this and all requests
for legal opinions are sent to the Litigation Section.
Agency’s Legitimate, Nondiscriminatory Reasons – Claim 5
Assuming, arguendo, that Complainant established a prima facie case of
age and reprisal discrimination, we find that the Agency articulated
legitimate, nondiscriminatory reasons for giving Complainant a “Fully
Successful” rating. Specifically, S1 averred that Complainant’s
rating was based on the monthly data he entered into the Operational,
Planning, Analysis and statistics (OPas) spreadsheets and that his rating
reflected the statistical analyses of his daily output. In addition,
S3 averred that Complainant did all the work that was required and
expected of him, but that his performance did not rise to the level
of excellent performance. Further, S3 averred that Complainant needed
assistance in updating cases in the computer systems.
Pretext – Claims 4 and 5
Because the Agency articulated legitimate, nondiscriminatory reasons
for its actions, the burden shifts to Complainant to demonstrate, by a
preponderance of the evidence, that the Agency’s reasons are a pretext
for age and reprisal discrimination. Regarding claim 4, Complainant
disagreed with management’s decision to change his duties, noting his
seniority and Naturalization experience. Regarding claim 5, Complainant
averred that when he directly asked S1 if his rating was related to his
pending EEO complaint against S3 and S2, she responded that if he had any
problems regarding that matter to take it up with them. When asked by
the EEO Investigator why he attributed the Agency’s actions in claims 4
and 5 to his age, Complainant referenced the alleged statement made by S3
(claim 3).
Upon review of the record, we find that Complainant failed to show
that, more likely than not, the Agency’s reason is pretextual.
While Complainant believes that management’s decision to change his
duties in claim 4 was unreasonable given his background, we note that
the ADEA does not protect against unfair or unwise business decisions
– only against decisions motivated by unlawful discriminatory animus.
There is no indication that Complainant was assigned duties outside his
job description as a GS-12 Level II ISO. In addition, while Complainant
speculates that S3 and S2 improperly influenced his rating in claim 5,
the record reflects that S3 was only the reviewing official and that
S2 had no involvement in his rating. Further, we note that S1, the
rating official, averred that she had no knowledge of any EEO activity
by Complainant at the time she completed the evaluation. Although the
EEO Counselor contacted S3 and S2 regarding Complainant’s complaint,
there is no indication that she contacted S1.3 Finally, with regard
to S3’s alleged remarks, we reference our previous finding that the
statement did not occur as alleged.
Harassment (Claims 3-5)
To establish a claim of harassment a complainant must show that: (1)
they belong to a statutorily protected class; (2) they were subjected
to harassment in the form of unwelcome verbal or physical conduct
involving the protected class; (3) the harassment complained of was
based on their 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. See Henson v. City
of Dundee, 682 F.2d 897 (11th Cir. 1982). 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 v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
The harasser’s conduct should be evaluated from the objective viewpoint
of a reasonable person in the victim’s circumstances. EEOC Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002,
at 6 (Mar. 8, 1994) (Harris Guidance).
Upon review of the record, we find that Complainant failed to establish
a claim of harassment. 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 Harris Guidance. A finding
of hostile work environment is precluded by our determination that
Complainant failed to establish that the actions taken by the Agency
in claims 4 and 5 were motivated by discrimination or retaliation.
See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21,
2000). Moreover, such a finding is also precluded by our determination
that Complainant failed to show that the statement by S3 in claim 3
occurred as alleged.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the
Agency’s final decision.
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
__1/19/12________________
Date
1 S3 was the reviewing official for the 2009 performance evaluation.
2 The Agency’s final decision did not address Complainant’s reprisal
claim.
3 When he contacted the EEO Counselor in July 2009, Complainant had not
received his performance rating.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120110333
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110333