0120072695
08-28-2007
Jose M. Rivera, Complainant, v. Elaine Chao, Secretary, Department of Labor, Agency.
Jose M. Rivera,
Complainant,
v.
Elaine Chao,
Secretary,
Department of Labor,
Agency.
Appeal No. 0120072695
Agency No. 05-03-032
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's April 24, 2007 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.
During the period at issue, complainant was employed as an Investigator, GS-1801-12, at the agency's Office of Labor-Management Standards (OLMS), Employment Standards Administration in Philadelphia, Pennsylvania.
On December 7, 2004, complainant filed a formal complaint. Therein, complainant claimed that he was discriminated against on the bases of national origin (Hispanic) and age (D.O.B. 12/25/51) when:
he was subjected to a hostile work environment; required to adhere to a formal flexi-place agreement when a co-worker was not required to do so; his 2003-2004 performance was evaluated as "effective;" and he was not selected for the position of Investigator (Labor), Series/Grade-1801-13, advertised under Vacancy Announcement Number PH-04-154.
In its April 24, 2007 final decision, the agency found no discrimination. Specifically, the agency determined that complainant failed to show that management's proffered explanations were pretext for discrimination. Regarding complainant's harassment claim, the agency found that complainant failed to prove that he was subjected to harassment sufficiently severe or pervasive so as to render his work environment hostile.
Complainant's supervisor (S1) stated that because complainant primarily worked from home, he was required to sign a flexi-place agreement. S1 stated that the female employee identified by complainant was not required to sign the flexi-place agreement because she worked at home one day a week based on an ad hoc basis. S1 further stated that he does not overly scrutinize complainant's work; and does not recall calling complainant more than once daily, with the exception of those occasions when he needs to talk to complainant about specific issues. S1 stated that it is his policy to contact his employees, including complainant, daily when they work from home. S1 stated that he had developed a reputation as a "hands on" supervisor because he likes to know what is going on with his employees' cases. S1 stated that while complainant received an "high effective" rating for the 2002-2003 rating year, he gave complainant an "effective" rating for the 2003-2004 rating year. S1 stated while complainant "had a productive year for the rating period that ended September 30, 2004, his work did not compare in complexity to that of the previous year."
Further, S1 stated that he was also the selecting official for the position of Investigator (Labor) Series/Grade-1801-13. S1 stated that he interviewed complainant and the identified female employee for the subject position. S1 stated that the qualities he sought in his selection included "good judgment, strong investigative skills, the ability to work complicated cases without extensive supervision, strong leadership skills and the ability to work well with others." S1 stated that he chose the female employee because she was a "top notch" OLMS investigator. Specifically, S1 stated that the selectee's reports of interviews and investigations are thorough and well detailed, and rarely needs more than minor reviews; and that she rarely needs extensive direct supervision. S1 stated that he could not say these things about complainant's work.
Regarding complainant's assertion that the Regional Director told him that one of the reasons the selectee was chosen was because she had Legal Enforcement Officer (LEO) status, S1 stated that he was not aware whether the Regional Director made the statement to complainant. S1 stated, however, that there was no difference in an investigator's qualifications based on their status as a LEO or non-LEO OLMS investigator.
Disparate Treatment
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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. See 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. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary's Honor Center 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that S1 articulated legitimate, nondiscriminatory reasons for his actions which complainant did not prove were a pretext for discrimination.
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, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). It is also well-settled that harassment based on an individual's prior EEO activity is actionable. Roberts v. Department of Transportation, EEOC Appeal No. 01970727 (September 15, 2000). A single incident or group of isolated incidents will generally 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 of 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, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. The harassers' 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 (March 8, 1994).
In the instant case, we find that the incidents complained of, even if true, do not rise to the level of a hostile work environment.
After a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848, Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint an attorney to represent you and that the Court 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 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
August 28, 2007
__________________
Date
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0120072695
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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