Barrett G. Malko, Complainant,v.International Broadcasting Bureau Agency.

Equal Employment Opportunity CommissionSep 29, 2004
01A31986 (E.E.O.C. Sep. 29, 2004)

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.