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.
??
??
??
??
2
0120073403
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013