0120150917_and_0120161858_X
04-26-2017
Joshua F.,1 Complainant, v. Michael R. Pompeo, Director, Central Intelligence Agency, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Joshua F.,1
Complainant,
v.
Michael R. Pompeo,
Director,
Central Intelligence Agency,
Agency.
Appeal Nos. 0120150917
0120161858
Agency Nos. 13-21
15-06
DECISION
On January 10, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's December 11, 2014, 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. Subsequently, on May 6, 2016, Complainant filed an appeal from the Agency's April 25, 2016, final decision concerning a second (EEO) complaint alleging employment discrimination in violation of the ADEA.
BACKGROUND
On April 26, 2013, Complainant filed the first EEO complaint alleging that the Agency discriminated against him on the basis of age (52) when:
1. He was subjected to a hostile work environment when from September 2010 through March 2013. Complainant provided a list of 19 events in support of his claim.
a. In or about September 2010, the Inspector General (IG), addressed the staff in a meeting and stated that he thought the staff's investigators were unskilled, poorly trained, underworked and overpaid. He further stated his intention to replace the investigator workforce with "1811" qualified officers and restructure the grade level of investigators and supervisory positions.
b. The IG convened an External Advisory Board that hired and promoted staff. Complainant was not given an opportunity to apply.
c. In late 2010, the IG advised the staff that all GS-15 positions would be downgraded, but was told he could not do so. He then indicated that he will replace people by attrition.
d. In fall of 2011, the IG hired a Chief who was his friend. By November 2012, the Chief was named Acting Assistant Inspector General (Acting AIG) bypassing other senior officers.
e. In 2011, the IG contracted with the Office of Personnel Management (OPM) to study personnel authorities and available personnel benefits. Complainant believed that the study was deigned to mislead Congress and support the IG's desire to replace the existing staff.
f. In or about March 2012, the Executive Advisor for the Investigative Programs (EA) was hired into a newly created position. A new position was created and the EA was selected for the position without competition.
g. On October 3, 2012, the Acting AIG announced restructuring of the unit including an administrative business unit. Complainant was never assigned to that unit.
h. On October 4, 2012, the Acting AIG announced during a staff meeting that the investigations business area was hiring new officers in anticipation of the departure of current officers. Complainant believed this would happen due to older officers retiring.
i. On or about October 4, 2012, the Deputy Inspector General (DIG) addressed the staff stating that the office was accelerating its plans and people were free to seek employment elsewhere.
j. On November 8, 2012, the staff was directed to meet with IG who admonished them for unprofessional conduct. Complainant indicated that the DIG stood over his left shoulder in an intimidating pose.
k. On January 9, 2012, the Acting AIG informed the staff that they had selected a Division Director. Complainant believed he was more qualified for that role.
l. Between January 4 and 10, 2013, emails from the IG that attacked Complainant's professionalism were revealed.
m. In January 2013, Complainant responded to concerns raised in the emails.
n. In January 2013, Complainant was encumbered with 13 ongoing investigations while others complained that there were no cases in the work queue for younger coworkers.
o. In January 2013, the Division Director who was Complainant's immediate supervisor asked Complainant if he was going to beat a co-worker out the door.
p. On February 22, 2013, the staff attended a mandatory training when a speaker referred to staff as "you old folks."
q. On February 22, 2013, the IG stood two feet from Complainant's seat and stated that he knew that staff was opposed to him.
r. On March 18, 2013, the Division Director made harsh critical statements regarding Complainant's work.
s. The Acting AIG repeatedly reminds staff that they had made eight offers of employment to replace staff who will be retiring in the next two years.
2. Complainant alleged discrimination based on age when on January 25, 2013, Complainant learned that an Agency award panel met in May 2012, recommended that he receive an "Exceptional Performance Award." However, the award has not been processed and Complainant has not received it.
3. Complainant alleged he was subjected to harassment based on his protected EEO activity. In support of his claim, Complainant alleged the following events:
t. Complainant was not interviewed for an OIG vacancy when the Division Director was selected.
u. On February 1, 2013, Complainant informed the Division Director of a malfunction with his workstation. An hour later, the Division Director went into Complainant's office, closed the door, sat down, and proceeded to make hypercritical and sarcastic comments about Complainant's work and professional expertise.
v. On February 1, 2013, another hour later, the Division Director appeared at Complainant's doorway and made unreasonable demands that a report be completed no later than close of business.
w. On February 5, 2013, Complainant was summoned to meet with Human Resources along with management when Complainant was being referred to the Employee Assistance Program for "anger management."
x. On March 5, 2013, the Deputy AIG informed Complainant that he was being reassigned to the Finance Division due to "recent events" which Complainant interpreted to mean his EEO complaint.
y. In March 2013, management authorized a "suitability" investigation on Complainant.
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 Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), 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 discrimination as alleged.
Complainant appealed asserting that the Agency failed to acknowledge his claim of harassment was more than merely "uncomfortable." He believed that the events alleged created a hostile work environment. He also argued that management was aware of his age. Finally, he argued that the Agency's arguments regarding his performance constituted hypocrisy and the Agency failed to provide legitimate, nondiscriminatory reasons for its actions.
Subsequently, on January 20, 2015, Complainant filed the second EEO complaint alleging discrimination and harassment. Specifically, Complainant alleged discrimination when:
4. He was subjected to harassment on the basis of reprisal (prior EEO activity). In support of his claim of harassment, Complainant alleged the following events occurred:
z. In or about July 2014, Complainant's managers referred him to the Office of Security, resulting in a six-plus hour interrogation;
aa. On November 24, 2014, Complainant was issued a Letter of Warning for violating the office's policy concerning accessing and searching information on himself.
bb. In November 2014, the Acting AIG denied Complainant an interview for the Deputy AIG position.
cc. On December 4, 2014, the Special Agent threatened to document Complainant for failing to meet case competition deadline for his assigned cases.
5. Complainant alleged that he was subjected to disparate treatment on the basis of reprisal when in November 2014, the Acting AIG denied Complainant an interview for the Deputy AIG position.
6. Complainant alleged that he was subjected to discrimination on the basis of reprisal when, on January 3, 2015, he alleged that management's actions caused his constructive discharge.
The Agency investigated the second EEO complaint. Following the investigation, Complainant was provided a copy of the Report of Investigation. On February 24, 2016, Complainant requested that the Agency issue a final decision. On April 25, 2016, the Agency issued its decision finding that Complainant was not subjected to harassment, disparate treatment, or constructive discharge.
On appeal, Complainant argued that it was disingenuous for the Agency to find that its managers provided legitimate reasons for their conduct. Complainant asserted that he did not violate policy which would have resulted in the disciplinary action raised in claim (4)(aa). Complainant claimed that he met or exceeded the qualifications for the position raised in claim (5). Finally, as to the claim of harassment, Complainant indicated that he feared physical abuse, loss of security clearance, loss of income, and loss of reputation. Further, he noted that this was the same pattern of behavior that led to his constructive discharge. As such, Complainant requested that the Commission reject the Agency's final decision. The Commission has consolidated the two appeals and will address Complainant's appeals in this single decision.
ANALYSIS AND FINDINGS
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. (Aug. 5, 2015) (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").
Claims (2) and (5)
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first 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; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. 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 Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In claims (2) and (5), Complainant asserted that he was subjected to disparate treatment. Upon review of the record, the Agency provided legitimate, non-discriminatory reasons for its actions. The Agency indicated that, as to claim (2), the Managing Official reviewed the recommendations for the awards. He, not the Acting AIG, possessed approval authority. The Managing Official indicated that he did not believe that everyone in the unit was deserving of the award. To this end, he sought additional information. However, a few months into the process of reviewing the awards, the Managing Official was moved to a new assignment and took no action on the award recommendations. As to claim (5), the Acting AIG averred that the successful applicants met the criteria of experience in being a supervisor of criminal investigations. The Executive Officer stated that she conducted a preliminary review of the applicant packages and recommended against interviewing Complainant due to lack of supervisory experience.
Finding that the Agency articulated legitimate, nondiscriminatory reasons, we turn to Complainant to establish that the Agency's reasons constituted pretext. Upon review, we find that Complainant failed to do so. We find that he merely asserted without proof that the actions occurred based on discriminatory animus. As such, we conclude that Complainant failed to show that he had been subjected to disparate treatment as alleged in claims (2) and (5).
Claims (1), (3), and (4)
It is well-settled that harassment based on an individual's age is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment, Complainant must show that: (1) he belongs to the statutorily protected class and/or engaged in prior EEO activity; (2) he was subjected to unwelcome conduct related to his/her membership in protected classes and his prior EEO activity; (3) the harassment complained of was based on age and/or prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance 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). 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 Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994).
Upon review of the record, we find that Complainant has not established that the events alleged herein occurred because of his age and/or prior EEO activity. To the extent Complainant alleged that the hostile work environment was based on his age, Complainant failed to provide evidence to support his assertion. Complainant alleged that management's action was a plot to force him to retire. Complainant argued that he was one of several senior officers who was being marginalized and that management wanted to remove him and replace him with newer, younger staff members.
It is clear from the record that Complainant and management had differences and challenges to their work relationship. Further, when the IG arrived at the Agency, he reviewed the unit's processes and determined that there were areas that needed to change. He argued that he was being transparent with the staff about his plans to make improvements to the office's efficiencies. He believed that Complainant misconstrued management's intentions. Management also noted that Complainant's work had to be returned. They raised issues of his poor conduct, lack of professionalism, and untimely investigations. Based on the totality of the record, we find that Complainant has not established that the hostile work environment was created because of his age and/or prior EEO Activity. As such, we conclude that Complainant has not established his claims of discrimination with respect to claims (1), (3), and (4).
Claim (6)
The central question in a constructive discharge case is whether the employer, through its unlawful discriminatory behavior, made the employee's working conditions so difficult that any reasonable person in the employee's position would feel compelled to resign. Carmon-Coleman v. Dep't of Def., EEOC Appeal No. 07A00003 (Apr. 17, 2002). The Commission has established three elements which a complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in the complainant's position would have found the working conditions intolerable; (2) conduct that constituted discrimination against the complainant created the intolerable working conditions; and (3) the complainant's involuntary resignation resulted from the intolerable working conditions. See Walch v. Dep't of Justice, EEOC Request No. 05940688 (Apr. 13, 1995). Upon review of the record, we find that Complainant has not shown that the working conditions were intolerable or that the alleged events constituted discrimination. Therefore, we find that Complainant has not established his claim of constructive discharge as alleged in claim (6).
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 decisions.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
April 26, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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