01A31986
09-29-2004
Barrett G. Malko, Complainant, v. International Broadcasting Bureau Agency.
Barrett G. Malko v. International Broadcasting Bureau
01A31986
09-29-04
.
Barrett G. Malko,
Complainant,
v.
International Broadcasting Bureau
Agency.
Appeal No. 01A31986
Agency No. OCR 97-22
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful 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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Computer Specialist with the Office of Computing Services, at the
agency's Washington, D.C. facility. Complainant filed an EEO complaint
on March 24, 1997, alleging that he was discriminated against on the bases
of sex (male), age (DOB 7/5/35) and reprisal (prior EEO activity) when:
(1) The agency placed a July 15, 1996 letter in his security file
without his knowledge stating that he was responsible for replacing
illegal software but failed to do so.
The agency failed to take appropriate action to stop his co-workers
from ridiculing him, calling him names, and otherwise harassing him and
subjecting him to a hostile work environment.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
The agency issued a FAD finding no discrimination. With regard to
claim (1), the agency found that complainant established a prima facie
case of discrimination, but failed to rebut the agency's legitimate
nondiscriminatory reason for its actions. With regard to claim (2), the
agency found that complainant failed to establish a prima facie case of
hostile work environment harassment in that he failed to show that he
was subjected to conduct that was sufficiently severe or pervasive.
On appeal, complainant argued that the agency did not properly investigate
his hostile work environment claim and erred in finding that he was
not subjected to discrimination.<1> The agency requests that we affirm
its FAD.
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green , 411 U.S. 792 (1973). A complainant 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 reason was a factor in the adverse employment
action. McDonnell Douglas, 411 U.S. at 902; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). Next, the agency must articulate
a legitimate, nondiscriminatory reason for its actions. After the
agency has offered the reason for its actions, the burden returns to
the complainant to demonstrate, by a preponderance of the evidence, that
the agency's reason was pretexual, that is, it was not the true reason
or the action was influenced by legally impermissible criteria. Texas
Department of Community Affairs v. Burdine, 450 U.S. 248 at 253 (1981);
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
With respect to claim (1), we find that the agency articulated
a legitimate nondiscriminatory reason for its action, e.g., that
security related documents were routinely placed in complainant's
security file just as it would be for any other employee with security
implications. Since the agency articulated a legitimate nondiscriminatory
reason for its action, we proceed directly to whether the complainant
has demonstrated, by a preponderance of the evidence, that the agency's
reason was pretexual. We find that complainant failed to rebut the
agency's legitimate nondiscriminatory reason for its action or failed
to show that the agency's action, more likely than not, was motivated
by discriminatory animus toward complainant's age, sex or prior EEO
activity. Accordingly, we find no basis to disturb the agency's findings
with respect to this claim.
With respect to claim (2), complainant contends that a library supervisor
falsely accused him of inappropriately staring at two women and that
upon learning about the incident, his co-workers subjected him to
ridicule by jokingly calling him names such as �dirty old man� and �King
Leer.� Complainant also claims that a picture of a medical personnel who
resembled him was stuck in his door with the words �OB-GYN� written on
it and with reference to him as �Dr. Malko.�
In order to prevail on a claim of hostile work environment harassment,
a complainant must show that: (1) he is a member of the 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
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) some basis exists to impute liability to the
employer, i.e., supervisory employees knew or should have known of the
conduct but failed to take corrective action. See Harris v. Forklift
Systems, Inc., 510 U.S. 17 (1993); Meritor Savings Bank v. Vinson, 477
U.S. 57, 64-65 (1986); 29 C.F.R. � 1604.11(a)(d)(1995); Wibstad v. United
States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998);
McCleod v. Social Security Administration, EEOC Appeal No. 01963810
(August 5, 1999). 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).
With respect to conduct between co-workers, an employer is responsible
for acts of harassment in the workplace that relate to race, color,
religion, sex, national origin, age or disability where the employer
or its agents or supervisory employees knew or should have known of
the conduct, and the employer failed to take immediate and appropriate
corrective action. See Rodriguez v. Department of Veterans Affairs,
EEOC Appeal No. 019 53850 (August 29, 2000); 29 C.F.R. � 1604.11 (d).
The Commission finds that complainant has not establish a prima facie
case of hostile work environment harassment. With respect to the �library
incident,� complainant presented insufficient evidence to establish
that the library supervisor was motivated by discriminatory animus
toward complainant's membership in a protected group when she accused
complainant of inappropriately staring at two women. With regard to the
name calling, we did not find that the conduct was sufficiently severe
or pervasive to rise to the level of a hostile work environment.
While jokingly being referred to as �King Leer,� �dirty old man,�
and �Dr. Malko� by co-workers is unpleasant and inappropriate, this
verbal conduct is not sufficiently egregious or severe to trigger a
violation of Title VII. As this Commission's guidance points out: the
anti-discrimination statutes are not a "general civility code." Thus
federal law does not prohibit simple teasing, offhand comments,
or isolated incidents that are not "extremely serious." EEOC Notice
No. 915.002, Enforcement Guidance: Vicarious Employer Liability for
Unlawful Harassment by Supervisors (June 18, 1999).
Complainant also failed to prove that the name calling was pervasive.
While initially complainant asserted that the name calling was �agency
wide� (see Report of Investigation (ROI) Supplement Tab 3), in other
statements complainant conceded that the name calling by his co-workers
in the Office of Computing Services ceased soon after it begun and �was
not the problem.� See Complainant's Brief in Support of Appeal, dated
June 28, 2004; ROI Supplement Tab 3.
Complainant asserted that �dozens� of other staff in the �broader
agency� continued to call him �King Leer� for a period of �no less
than one year� up to �1-3 times per day,� eventually diminishing to a
�few comments per week� and became a determinant in his decision to
retire. ROI Supplement Tab 3. However, we do not find complainant's
contentions regarding the frequency and duration of the name calling to
be credible given inconsistencies in complainant's assertions and lack of
supporting evidence. For instance, on the one hand complainant asserted
that the �King Leer� name calling harassment occurred as he walked the
halls of the agency trying to do his job and that he �could not focus on
the culprit� and �it was almost impossible to determine who called him
a name.� ROI Supplement Tab 3. On the other hand, complainant asked
the agency's EEO investigator to walk the halls with him so that he
(complainant) could �identify, on the spot, those that called him King
Leer.� ROI Supplement Tab 3. Moreover, while complainant claims �many�
others witnessed the �many times� he was addressed as �King Leer,� none
of the witness statements of record support complainant's contention with
regard to the frequency or duration of the name calling. One witness
stated that the teasing lasted for several months, became an old joke
and all but died out.�<2> ROI Supplement Tab 5. Two other witnesses
stated that they may have heard complainant being called �King Leer�
maybe once or twice but no more.<3> ROI Supplement Tab 9 and 10. The
other seven employees who provided sworn statements testified that they
had not heard complainant being referred to as �King Leer� at all. ROI
Supplement Tabs 4, 6-8, and 11-13. We find that it strains credulity that
the name calling occurred as frequent (1-3 times a day), in an open area
(the halls), for such an extended period of time (no less than one year)
as complainant contends, but the only evidence of record that the name
calling was this pervasive is complainant's bare assertions.
Complainant's hostile work environment claim also fails because the
record evidence shows that the agency took reasonable care to address
and prevent inappropriate conduct by staff after complainant gave notice
of the incidents. For instance, when the library incident was brought
to management's attention, management held a meeting with complainant
and the library supervisor to resolve the issue, and an agreed upon
resolution was reached by the parties. ROI supplement Tab 4. Furthermore,
when complainant gave notice to his first level supervisor that his
co-workers were calling him names such as �King Leer� in reference to
the library incident, the supervisor approached his employees one-on-one
and advised them to cease such conduct as it was �unprofessional and
inappropriate.� ROI Supplement Tab 5. A similar announcement was made
to Office of Computing Services staff by complainant's first and second
level supervisor at the next general staff meeting. ROI Supplement Tab 3
and 5; Complainant's Appeal Brief dated June 28, 2004. After being advised
that the conduct was inappropriate, Office of Computing Services staff
ceased the name calling. Complainant's Brief in Support of Appeal dated
June 28, 2004; ROI Supplement Tab 3 and 4. <4> Hence, we find that the
agency took �immediate and appropriate� action to address complainant's
discomfort when complainant raised the matter with management.
For the reasons set forth herein, we find that the complainant failed to
establish a prima facie case of hostile work environment harassment. Since
complainant is unable to prove his hostile work environment claim,
any claim of constructive discharge also fails.
Therefore, after careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the agency's
final order.
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
_____09-29-04____________
Date
1 In a preliminary decision dated April 7, 2004, the Commission found
that the agency's initial investigation did not adequately investigate
complainant's hostile work environment claim. Accordingly, the Commission
issued an Interim Order which held the appeal in abeyance and directed
the agency to supplement the record. On June 25, 2004, the Commission
received the agency's supplemental investigation. The Commission finds
that the record is now adequately developed for review.
2 This witness characterized the name calling as � teasing� and stated
that it was continued by employees who did not work in the Office
of Computing Services for several months and then died out. See ROI
Supplement 5.
3 Although one of the witnesses stated he only heard complainant being
referred to as �King Leer� maybe once or twice, complainant asserted
that this witness often walked the building route with complainant and
could recall the �many times� complainant was derisively called �King
Leer.� ROI Supplement Tab 3.
4 While complainant asserted that the name calling by co-workers in
the �broader agency� occurred weekly over an extended period of time,
there is insufficient evidence in the record to support this assertion
and insufficient evidence to show that complainant brought this to the
agency's attention.