0120122678
11-02-2012
Raymond V. Mercedes, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
Raymond V. Mercedes,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120122678
Agency No. P-2010-0562
DECISION
On May 16, 2012, Complainant filed an appeal from the Agency's April 18, 2012, 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 which found that Complainant failed to show that he was discriminated against as alleged.
ISSUE PRESENTED
The issue presented in this case is whether Complainant was subjected to a hostile work environment/harassment when based on his race, national origin, and prior EEO activity he was subjected to harassment from April 2009 through July 2010 in the form of reassignments, alleged verbal threats, unprofessional comments, not receiving quarterly and annual evaluations in a timely manner, and having the statement "refused to sign" on his performance evaluation.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-8 Senior Officer Specialist at the Agency's Federal Medical Center "FMC" facility in Devens, Massachusetts. Complainant indicated that on three occasions he was reassigned from his scheduled post. This includes a reassignment on April 24, 2010, when he was reassigned from his perimeter post and sent to work at Control Number 1. Control Number 1 is responsible for opening and closing most doors at the institution and plays a key role in the safety of the institution and surrounding community. Complainant explained to the Lieutenant that assigned him to Control Number 1 that he was not prepared to work Control Number 1 because he did not have the necessary sentry password, and had not worked Control 1 before. Nevertheless, Complainant was instructed by the Lieutenant to go to Control 1. Complainant was told that failure to do so was cause for being written up for refusing a direct order. Complainant was assigned to work the location with another officer. According to Complainant, the other officer effectively worked Control 1 because he had the required passwords. The following day, Complainant sent an email to the Lieutenant, the Warden and several others explaining that he had been assigned to a detail for which he believed he was not prepared and feared that if something had happened he would have been held responsible. Afterward, Complainant maintains that the Lieutenant told him that if he was going to make his life miserable he would do the same to Complainant.
Complainant maintains that subsequently he did not receive quarterly and annual evaluations in a timely manner. Additionally, he maintained that "refused to sign" had been placed on his performance evaluation when in fact he had not seen the evaluation. Complainant asserted that all of these incidents amounted to a hostile work environment.
On July 2, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Black/Hispanic), national origin (Dominican), and reprisal for prior protected EEO activity when he was subjected to harassment from April 2009 through July 2010 in the form of reassignments, verbal threats, unprofessional comments, not receiving quarterly and annual evaluations in a timely manner, and by having untruthful statements such as "refused to sign" placed on his evaluations.
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 (AJ). 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 discrimination as alleged. With respect to Complainant's claims that he did not receive quarterly and annual evaluations in a timely manner, the Agency dismissed this claim for failure to state a claim because Complainant failed to show that he was aggrieved.1 With the remaining claims, the Agency indicated that nothing in the record suggested that Complainant was subjected to discrimination or harassment in any form. The Agency explained that assuming arguendo that Complainant established a prima facie case of discrimination as to all bases, it articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant's supervisors were well within the scope of their authority to reassign him to different posts. Further, while Complainant maintained that he did not feel comfortable with the assignment of working Control Number 1, his feelings were not evidence that the assignment was discriminatory or retaliatory. The Agency indicated that as a GS-8 Senior Officer Specialist, Complainant was capable of working the Control Center post and had previously worked such a post at his previous institution. The Agency indicated that Correctional Officers are routinely moved around to different assignments given the needs of the institution.
Further, the Agency indicated that Complainant provided no evidence which supported his claim that the Lieutenant threatened to make his life miserable. The Lieutenant denied making the statement and Complainant's witness indicated that he did not recall this statement ever being made. Additionally, the Agency indicated that a second Lieutenant (Lieutenant 2) erred when he wrote "refused to sign" on Complainant's yearly performance evaluation. According to the Agency, this occurred after Complainant failed to review his evaluation on-line. The Agency maintained that discrimination was not involved. The Agency explained that based on Complainant's complaint, it was discovered that Lieutenant 2 had not followed proper procedures to ensure that the employees for whom he was responsible for preparing evaluations had sufficient opportunity to review and sign their evaluations in person. Lieutenant 2 testified that he had made the similar "refused to sign" notation on five or six other employees' evaluations. Lieutenant 2 was disciplined for his actions and was instructed to give employees the opportunity to review in person their evaluations.
The Agency argued that Complainant's protected bases had nothing to do with these matters, and that the conduct complained of was not so severe or pervasive as to establish a hostile work environment. The Agency also maintained that Complainant failed to demonstrate that its articulated, nondiscriminatory reasons were pretext for discrimination. Therefore, the Agency found that Complainant had failed to show that he was subjected to discrimination or harassment in any manner.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that his claim regarding review of quarterly and yearly evaluations stated a claim because an employee should have the opportunity to review his evaluations without the supervisor writing "refused to sign" on them. Complainant maintains that it is possible that at that time he did not have access to a computer but even if that was the case he should have still been able to meet with his supervisor to discuss the evaluation. Complainant argues that he believes that Lieutenant 2 committed forgery with regard to his personnel documents, which are used for promotions, awards and advancement to another federal agency. Further, Complainant contends that he believes that the reassignments were hostile in nature because he believed that they were done to undermine him as a correctional officer in the eyes of other staff and inmates. Complainant notes that in a prior case that he filed, Mercedes v. Attorney General, U.S. Department of Justice, EEOC No. 0120102127, (September 17, 2010), the Commission upheld an EEOC Administrative Judge's (AJ) finding of discrimination when it was found that Complainant was subjected to a hostile work environment.
Complainant also maintains that the record failed to show that he had just recently been promoted to a GS-8 position after his fourth attempt at promotion. Complainant contends that the only other individual whose evaluation contained "refused to sign" was Hispanic. Further, Complainant indicated that after he expressed his reluctance to go to Control 1 why the option of assigning another employee to the position was not considered. Complainant reports a culture of discrimination and retaliation at the Agency. Complainant requests that his annual evaluation be changed to "Outstanding," that individuals involved be investigated, attend training and disciplined if necessary. He also requests that written apologies be given to him.
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
Disparate treatment
In the instant case, the Commission finds that even if we assume arguendo that Complainant established a prima facie case of discrimination as to all bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that with respect to being reassigned and particularly to being reassigned to Control 1, the Agency indicated that supervisors have the right to reassign personnel if there is a need. In this instance, someone was needed to work Control 1, and Complainant was selected. And while Complainant asserts that he did not receive enough advanced notice and he did not believe he was prepared or experienced enough to work Control 1, as he had only recently been promoted to GS-8. The record shows that in his prior position he had worked a similar assignment. It also shows that he was paired with a Senior Officer that had experience working Control 1 and who had all of the necessary passwords. The Senior Officer reported that there were no difficulties or problems whatsoever, and that everything ran smoothly. Moreover, Complainant himself admitted that management had the right to reassign employees to needed areas; and while Complainant may have wanted advanced notice of the assignment, he provided no evidence that this change was due to his protected bases or that he was entitled to advanced notice. With respect to Complainant's claim that he was subjected to verbal threats, the Agency indicated that Complainant provided no evidence to support this claim. In fact, Complainant's own witness indicated that he did not recall the Lieutenant threatening Complainant in any manner.
Further, with respect to the Complainant's claim that "refused to sign" was written on his evaluation, the Agency explained that Lieutenant 2 was disciplined for doing this to six other employees who did not respond to his email to view their evaluation. The Agency maintained that Lieutenant 2 did not behave in a manner that was expected of him and was disciplined because as he was supposed to allow employees time to review their evaluations. There has been no evidence presented that Complainant's protected bases was a factor in this matter. Complainant attempts to show pretext by indicating that the only other employee that the Lieutenant did this to was also Hispanic. The record indicates, however, that Lieutenant 2 was disciplined for writing "refused to sign" on six other employee evaluations. We find that Complainant has failed to show that this incident was due to his race, national origin or prior EEO activity and not just a management error. Additionally, we find that Complainant's other contentions on appeal are irrelevant to this case as they do not show that the Agency's articulated legitimate, nondiscriminatory reasons are pretext for discrimination or that discriminatory animus was involved in any of these incidents.
Harassment
We find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's 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 above that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, 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 AFFIRM the Agency's FAD which determined that Complainant failed to establish discrimination as he alleged.
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
___11/2/12_______________
Date
1 Upon review of the record, the Commission finds that the Agency properly dismissed this claim as Complainant failed to show how he was injured by this action.
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0120122678
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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