Barry E. Hill, Complainant,v.Stephen L. Johnson, Administrator, Environmental Protection Agency, Agency.

Equal Employment Opportunity CommissionJan 23, 2009
0120073403 (E.E.O.C. Jan. 23, 2009)

0120073403

01-23-2009

Barry E. Hill, Complainant, v. Stephen L. Johnson, Administrator, Environmental Protection Agency, Agency.


Barry E. Hill,

Complainant,

v.

Stephen L. Johnson,

Administrator,

Environmental Protection Agency,

Agency.

Appeal No. 0120073403

Agency No. 2005-0025-HQ

DECISION

On July 27, 2007, complainant filed an appeal from the agency's June 25,

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. The appeal is deemed timely and is accepted pursuant

to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission

AFFIRMS the agency's final decision.

At the time of events giving rise to this complaint, complainant worked

as the Director (SES) of EPA's Office of Environmental Justice (OEJ).

On January 25, 2005, complainant filed an EEO complaint (which he

subsequently amended several times) alleging that he was discriminated

against on the basis of reprisal for prior protected EEO activity [under

Title VII] when he was subjected to harassment as follows:

(a) Complainant's manager (M1)1 told a member of complainant's staff

that she would make complainant's life miserable as long as he was in

his position;

(b) A subordinate employee (E1)2 stated that M1 had tried to move

complainant to other offices but "no one wants [him]";

(c) E1 stated that M1 intended to put the Director, Office of Small and

Disadvantaged Business Utilization, in the position of OEJ Director;

(d) E1 stated that she was actively organizing community environmental

justice group representatives to submit their complaints against

complainant to M1;

(e) E1 attended several meetings with M1 regarding this retaliatory

activity and orchestrated meetings with other OEJ employees at local

restaurants to advance M1's retaliatory agenda;

(f) E1 sent several memoranda to M1 and E1 was instructed to gather

information that could be hurtful to complainant;

(g) An employee (E2)3 worked in concert with M1 and E1 to get agency

Environmental Justice Coordinators to complain about complainant to M1;

(h) E2 sent M1 copies of e-mails that he sent to complainant, which

conveys that he has the support of M1 and that complainant is his direct

supervisor in name only;

(i) Another employee (E3)4 sent memoranda in furtherance of the

conspiracy, engaged in efforts to get other employees involved in the

conspiracy, and complained to others that complainant was violating her

rights by requiring her to be involved in communications work;

(j) During a conference call, an employee (E4)5 announced that M1 had

stated that she was "very concerned about environmental justice and

was open to hearing from the EJ Coordinators," which other participants

interpreted to mean that M1 was concerned with complainant. Subsequently,

M1 was invited to participate in the next conference call, even though

she has never been asked to do so before;

(k) E2, working in concert with M1, planted a false story in the Friday,

April 1, 2005 edition of Inside EPA entitled "EPA's Environmental

Justice Office Facing Widespread Criticism", which was highly critical

of complainant. In addition, E2 recruited EPA's Environmental Justice

Coordinators to participate in the false story;

(l) E1 worked with community representatives to contribute to the false

story;

(m) M1 stated that she intends to remove complainant from his position

once his EEO complaint has moved through the system;

(n) M1 told E1 that she was angry with complainant for failing to accept

a position that he was offered by the agency; and

(o) M1 told him, on March 4, 2005, that other OEJ employees have told

her that they have "issues" with the management of the office and felt

intimidated by his FOIA requests.6

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of his right to request a

hearing before an EEOC Administrative Judge (AJ). The record indicates

that complainant did not timely request a hearing, and the agency issued

a final decision pursuant to 29 C.F.R. � 1614.110(b).

The FAD found that even if the events described by complainant were

true, they fail to state a claim of harassment because they are not

severe or pervasive. The FAD further found that there is no evidence in

the record of a nexus between complainant's protected activity and the

actions taken by management. The FAD noted that the record establishes

that there was strife within OEJ even before complainant filed his

EEO complaint in December 2004. Additionally, the FAD found that the

record shows that many OEJ employees and EJ Coordinators had problems

with complainant (i.e., his management style) before he initiated his

EEO complaint. The FAD also found no evidence of a conspiracy between

management and complainant's subordinates to gather negative information

about complainant in an attempt to oust him from his position. The FAD

concluded that complainant failed to prove that he was subjected to

discrimination as alleged.

Complainant raises no new arguments on appeal. The agency requests that

we affirm the FAD. 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 EEOC Management Directive 110, 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").

The statutory retaliation clauses prohibit any adverse treatment that

is based on a retaliatory motive and is reasonably likely to deter

the charging party or others from engaging in protected activity.

Petty slights and trivial annoyances are not actionable, as they are

not likely to deter protected activity. More significant retaliatory

treatment, however, can be challenged regardless of the level of harm.

As the Ninth Circuit has stated, the degree of harm suffered by the

individual "goes to the issue of damages, not liability." Hashimoto

v. Dalton, 118 F.3d 671, 676 (9th Cir. 1997). Smith v. Secretary of

Navy, 659 F.2d 1113, 1120 (D.C. Cir. 1981) ("the questions of statutory

violation and appropriate statutory remedy are conceptually distinct.

An illegal act of discrimination-whether based on race or some other

factor such as a motive of retaliation - is a wrong in itself under

Title VII, regardless of whether that wrong would warrant an award of

[damages]''). The retaliation provisions set no qualifiers on the term

"to discriminate," and therefore prohibit any discrimination that is

reasonably likely to deter protected activity. A violation will be found

if an employer retaliates against a worker for engaging in protected

activity through threats, harassment in or out of the workplace, or any

other adverse treatment that is reasonably likely to deter protected

activity by that individual or other employees. EEOC Compliance Manual

on Retaliation, No. 915.003, at 8-14 through 8-16 (May 20, 1998).

Based on the standards set forth in Harris v. Forklift Systems, Inc.,

510 U.S. 17 (1993), in order to prevail on a claim of harassment,

complainant must prove that: (1) he was subjected to harassment that

was sufficiently severe or pervasive to alter the terms or conditions

of employment and create an abusive or hostile environment; and (2) the

harassment was based on his membership in a protected class. See EEOC

Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris

v. Forklift Systems, Inc. at 3, 6; Cobb v. Department of the Treasury,

EEOC Request No. 05970077 (March 13, 1997). The evidence in the record

is insufficient to support a finding that management's actions towards

complainant were based on reprisal for his having engaged in the EEO

process.7 See EEOC Notice No. 915.002 (March 8, 1994), Enforcement

Guidance on Harris v. Forklift Systems, Inc. at 3, 6. In so finding, we

note that we do not have the benefit of an AJ's findings after a hearing

and therefore, we can only evaluate the facts based on the weight of

the evidence presented to us.

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, we AFFIRM the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0408)

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 77960,

Washington, D.C. 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 (S0408)

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 (Z1008)

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

January 23, 2009

_________________

Date

1 Complainant reported directly to M1, the Principal Deputy Assistant

Administrator of the EPA's Office of Enforcement and Compliance Assurance

(OECA).

2 E1 is a Program Manager (Program Analyst) at OEJ.

3 E2 is Associate Director for Policy and Interagency Liaison at OEJ.

4 E3 is an Environmental Protection Specialist (EPS) at OEJ.

5 E4 is a regional Environmental Justice Coordinator (EJC) based in

Atlanta, Georgia.

6 In his initial complaint, complainant also alleged that the agency

denied his FOIA request because of discriminatory reasons. The agency

dismissed this claim and since complainant does not specifically challenge

the dismissal on appeal, we decline to address it herein.

7 The record reflects that M1 denied discussing complainant's EEO

complaint with E1. In addition, the record reflects that M1 denied making

various other statements pertaining to complainant's protected activity.

Furthermore, other witnesses, such as E1, denied that M1 made statements

to her pertaining to complainant's protected activity.

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0120073403

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 77960

Washington, D.C. 20013