0120093215
03-31-2011
John M. Jennings, Complainant, v. Hilda L. Solis, Secretary, Department of Labor (Employment Standards Administration), Agency.
John M. Jennings,
Complainant,
v.
Hilda L. Solis,
Secretary,
Department of Labor
(Employment Standards Administration),
Agency.
Appeal No. 01-2009-3215
Agency No. CRC0903019
DECISION
On July 14, 2009, Complainant timely filed an appeal from the Agency's
June 19, 2009, final decision concerning his equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of
Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq. 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.
ISSUE PRESENTED
The issue presented before the Commission on appeal is whether Complainant
has established by preponderant evidence that he was subjected to a
hostile work environment on the bases of race (Caucasian) and reprisal
(prior EEO activity).
BACKGROUND
Complainant worked as a Worker's Compensation Claims Examiner at the
Agency's Employment Standards Administration, Post Adjudication Unit
in Philadelphia, Pennsylvania at the time of events giving rise to this
complaint. His duties were to adjudicate and authorize payment for the
full range of disability and death cases under the Federal Employees
Compensation Act; examine injury, disease and death cases for factual
sufficiency and legal correctness; identify candidates for rehabilitation
and work with rehabilitation specialists; examine claims to determine
whether injury was caused by a third party; arrange for examination of
claimants in cases involving disfigurement of the face, neck, or head;
review and approve attorney fees request; and make determinations in
cases involving overpayment of compensation.
The record reflects that Complainant, initially hired by the Agency on
August 17, 2007, was terminated on August 15, 2008. Because he was
deemed a probationary employee, he was not given full appeal rights.
The Merit Systems Protection Board later determined that he was not a
probationary employee, and therefore entitled to full appeal rights prior
to determination. As a result, the Agency was required to reinstate
Complainant with full benefits, including back pay for the time he had
been out of work following his determination. Complainant returned to
work on October 14, 2008.
On December 3, 2008, Complainant filed an EEO complaint alleging
that the Agency subjected him to discrimination and a hostile work
environment on the above-referenced bases and sexual orientation when
(1) he did not receive a formal reinstatement letter until October 16,
2008, two days after he returned to work; (2) he was given unreasonable
deadlines to complete assignments despite not having access to the
computer systems and paper files he had before his termination; (3)
he was issued a Performance Improvement Plan (PIP) on November 6, 2008;
(4) he was teased by his co-workers because of his sexual orientation on
December 5, 2008; and (5) his first-line supervisor (S1) instructed him
not to seek assistance from his co-workers and, on December 18, 2008,
disciplined him for not following this order.
On January 9, 2009, the Agency accepted the Complaint for investigation
and, at the conclusion thereof, provided Complainant a copy of the report
of investigation (ROI) and notice of his right to request a hearing
before an EEOC Administrative Judge (AJ) or a final decision from the
Agency based on the investigative record. Complainant requested a
final decision and, in accordance with Complainant's therewith, the
Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The decision concluded that Complainant failed to state a claim regarding
his sexual harassment allegation and did not establish he was subjected
to discrimination based on race and reprisal. Complainant thereafter
filed this appeal
CONTENTIONS ON APPEAL
On appeal, Complainant contends that his sexual orientation claim should
be allowed to go forward because Executive Order 13087 protects federal
employees from discrimination based on sexual orientation. He further
contends that the Agency disregarded his evidence of race and reprisal
discrimination and weighted his evidence less than that provided by
management. The Agency reasserts its dismissal of Complainant's sexual
orientation claim and requests that we affirm the final decision because
the preponderance of the evidence does not indicate that Complainant was
subjected to discrimination under any of the governing EEOC statutes.
The contentions of both parties will be addressed in the "Analysis and
Findings" section below.
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 Chapter 9,
� VI.A. (November 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
Sexual Orientation
The Commission's regulations provide, in relevant part, that an Agency
shall dismiss a complaint that fails to state a claim. 29 C.F.R. �
1614.107(a)(1). An Agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he has been
discriminated against by that Agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. � 1614.103,
� 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 (April 21, 1994).
Complainant argues on appeal that the Agency erroneously dismissed
his sexual orientation claim because Executive Order 13087 provides
that "it is the policy of the [federal] Government ...to prohibit
discrimination in employment because of ...sexual orientation through a
continuing affirmative program in each executive department and agency."
Complainant is correct that federal agencies are required to prohibit
discrimination on the basis of sexual orientation but the Commission has
no authority to enforce the protections that prohibit discrimination
and harassment on that basis.1 See also 29 C.F.R. � 1614.101(a); �
1614.101(b) (Commission regulations stating that it is the policy of the
[federal] Government...to prohibit discrimination in employment because
of race, color, religion, sex, national origin, age or [disability] and
retaliation).2 We therefore find that Complainant's claim of sexual
orientation discrimination, particularly as it relates to allegation
4,3 was properly dismissed.
Race and Reprisal
1. 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. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985). A
single incident or group of isolated incidents will 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 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, 510 U.S. 17 (1993).
To establish a claim of hostile environment harassment, Complainant must
show the existence of the following five elements: (1) he is a member
of a 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 the statutorily
protected classes; (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); see also Flowers v. Southern Reg'l Physician Serv. Inc.,
247 F.3d 229 (5th Cir. 2001); Fox v. General Motors Corp., 247 F.3d 169
(4th Cir. 2001). Humphrey v. United States Postal Serv., EEOC Appeal
No. 01965238 (Oct. 16, 1998).
Complainant alleged that he was subjected to harassment when he was given
what he regarded as an untimely formal reinstatement letter because
he received it two days after returning to work, was not given access
to the proper computer systems and paper files while being subjected
to unreasonable work assignment due dates, and instructed not to seek
assistance from his co-workers.4
In response, the Agency stated that Complainant was advised by letter
dated October 6, 2008, that he was to return to work on October 14, 2008,
and when it was learned that he never received it, they gave him one
by October 16, 2008. Regarding the unreasonable assignment completion
dates, the Agency admitted that Complainant did not have access to all
of his computer systems immediately upon returning to work but stated
he did have access to some programs which allowed him to do some work.
The Agency further stated that part of the reason Complainant was
unable to finish work timely is because he spent a lot of time talking
with co-workers which resulted in wasted time which could have been
used working. That is the reason, the Agency stated, Complainant was
not allowed to seek assistance from his co-workers. More clearly, the
Agency averred that Complainant's interactions with his co-workers became
disruptive to others. The Agency noted that Complainant was allowed to
seek assistance from the two most senior claims examiners as they were
tasked with certifying his work.
Based on the responses submitted by the Agency, and the lack of
information in the file to rebut it, we find that Complainant has failed
to prove that the events of which he complained occurred because of his
membership in a protected class, and therefore find that he failed to
establish the third element of a harassment claim. Without the existence
of all five elements of harassment as enunciated above, Complainant's
harassment allegation fails.
Disparate Treatment
Complainant also alleged he was treated differently than others outside
his protected groups (sex and reprisal) when he was placed on a PIP
on November 6, 2008 and disciplined on December 18, 2008, for seeking
assistance with his work from his co-workers. In the absence of direct
evidence of discrimination, as is the case here, the allocation of
burdens and order of presentation of proof in a disparate treatment case
is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-803 (1973).
First, Complainant must establish a prima facie case 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. McDonnell Douglas, 411 U.S. at
802. Second, the Agency must articulate legitimate, nondiscriminatory
reasons for its actions. Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). And third, if the Agency is successful, then
Complainant must prove by preponderant evidence that the legitimate
reasons proffered by the Agency were a pretext for discrimination. Id. at
256. We will assume Complainant has established a prima facie case of
race and reprisal discrimination with respect to these allegations and
turn our attention to whether the Agency has articulated legitimate,
nondiscriminatory reasons or explanations for the events which underlie
them. Burdine at 253.
On behalf of the Agency, Complainant's first0line supervisor (S1) stated
that Complainant was placed on a PIP because he failed to complete timely
a number of Priority Assignments. Complainant's second-line supervisor
(S2) stated that he agreed with S1's decision to issue the PIP because
he had received negative feedback from claimants about Complainant's
work and through his own observation of Complainant's work and how
Complainant operated. S1 further stated that Complainant was given an
oral admonishment in a letter dated December 18, 2008, for violating the
order not to seek help from any of his co-workers except the two Senior
Claims Examiners, and apprised him of the consequences if he were to
engage in the same behavior again. We find that the Agency has met its
burden of stating legitimate, nondiscriminatory reasons for its actions.
In the final step in the McDonnell Douglas scheme, the inquiry moves to
consideration of whether Complainant carried his burden to demonstrate
pretext. In order to prevail on his claim of discrimination, Complainant
must show through probative and preponderant evidence that the Agency's
articulated reasons were a pretext for discrimination. Complainant can
do this by showing that the Agency's explanation is unworthy of credence
and that its actions were influenced by legally impermissible criteria,
i.e., animus toward him because of his race or for engaging in prior
EEO activity.
Complainant argued that the Agency gave more credence to the management's
evidence than it gave to his. We note that concerns about the credibility
of the evidence might have been addressed at a hearing, which Complainant
did not request. Complainant submitted affidavits from one or two
employees who seemed to echo his belief that S1 discriminated against
Complainant. However, these affidavits are not supported by anything
else in the record. To prevail before the Commission, Complainant needs
actual proof, that is, something beyond mere allegations to support the
charge that the actions here were motivated by unlawful discrimination.
He has not done that; we therefore deny his claim.
Finally, with respect to Complainant's contention that he was subject to
a hostile work environment regarding the PIP issued on November 8, 2008,
and the discipline received on December 18, 2008, we find that under
the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17
(1993) his claim of hostile work environment must fail. See Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002
(Mar. 8, 1994). A finding of a hostile work environment is precluded by
our determination that Complainant failed to establish that these actions
were motivated by discriminatory animus in the first place. See Oakley
v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we find that the Agency
properly dismissed Complainant's sexual harassment claim and correctly
found that he failed to establish that he was discriminated against on
the basis of race and reprisal. We therefore affirm the Agency's final
order.
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 (Nov. 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
March 31, 2011
Date
1 Further information is available on EEOC's website at
http://www.eeoc.gov/facts/fs-orientation_parent_marital_political.html.
2 The Commission also handles federal complaints of discrimination
pursuant to the Genetic Information Nondiscrimination Act of 2008.
See 42 U.S.C. 2000ff et. seq.
3 It appears this allegation is based solely on Complainant's sexual
orientation and will therefore not be addressed further.
4 We note that Complainant was disciplined for seeking assistance from his
co-workers and this discipline makes up part of his claim of harassment.
Because this action is discrete as opposed to the kind of events which
typically comprise a harassment claim, we will also discuss this in the
"Disparate Treatment" section below.
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01-2009-3215
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
01-2009-3215