Carl M.,1 Complainant,v.Kathy Kraninger, Director, Bureau of Consumer Financial Protection, Agency.

Equal Employment Opportunity Commission

Dec 17, 2019

2019001482 (E.E.O.C. Dec. 17, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Carl M.,1
Complainant,

v.

Kathy Kraninger,
Director,
Bureau of Consumer Financial Protection,
Agency.

Appeal No. 2019001482

Agency No. CFPB-0011-2018

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 27, 2018, 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. For the following reasons, the Commission AFFIRMS the Agency’s final
decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Examiner at the
Agency’s Division of Supervision, Fair Lending, and Enforcement in Dallas, Texas. Complainant
stated that from November 29, 2017, through March 3, 2018, he was not provided with resources
for his assigned tasks or growth opportunities. Specifically, Complainant stated that he was not
provided assistance with a heavy work load on his Module 8 assignment. Complainant also stated
that he was not provided with growth opportunities when he was not assigned a lead role until a
junior examiner backed out. Report of Investigation (ROI) at 107.

Complainant stated that on January 10, 2018, his first-line supervisor (S1) assigned Complainant
a workstation at a financial institution, without warning him that a camera was capturing his laptop
screen. ROI at 108.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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On January 22, 2018, Complainant received an email from the Acting Examiner-in-charge (EIC)
scheduling a meeting to do a walkthrough of loans. EIC stated that Complainant’s coworker (CW)
would run through one loan while Complainant watches, and then Complainant would run through
a loan while CW watches. ROI at 146. Complainant stated that when he asked EIC why he sent
the email, EIC “lashed out” at him, and stated that Complainant was a “difficult person to work
with.” ROI at 117-8,122.

Complainant stated that on January 31, 2018, he learned that a picture of a laptop, that allegedly
belonged to Complainant, was taken in the bathroom at a financial institution. Complainant stated
that on February 7, 2018, his second-line supervisor (S2) sent him an email for a “sudden
Weingarten meeting.” Complainant stated that S2 stated that he wanted to ensure that there was
no violation of Confidential Supervisory Information in the laptop, and that Complainant’s
computer and emails were reviewed for such information. ROI at 126-9. On March 2, 2018, S1
informed Complainant that the Security Department determined that there was no privacy issue
found, and that there would be no further action. ROI at 289.

On March 15, 2018, Complainant filed an EEO complaint alleging that the Agency subjected him
to a hostile work environment in reprisal for his current and prior protected EEO activity when:

1. from November 29, 2017, through March 3, 2018, he was not provided adequate
resources for his assigned tasks or growth opportunities;

2. on January 10, 2018, he was the only examiner placed in front of the financial
institution’s surveillance cameras;

3. on January 22, 2018, he received an email from EIC with “humiliating
instructions”;

4. on January 23, 2018, EIC said in front of all the examiners that Complainant was a
“difficult person to work with,” and gave him a verbal performance appraisal; and

5. on January 31, 2018, he became aware that a picture of a laptop was taken in the
bathroom at a financial institution, and on February 7, 2018, Complainant was
ushered into an unscheduled meeting and humiliated in front of everyone present
while he was questioned about the picture.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).

The Agency found that even assuming that the management officials were aware of Complainant’s
protected EEO activity, he did not establish that they were motivated by retaliatory animus.
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In addition, the Agency found that Complainant did not show that the events occurred as alleged
by Complainant. For event 1, S1 stated that she assigned Complainant two other examiners to
assist him, and for event 2, the witness statements showed that the examiners were not assigned
seats. The Agency also found that Complainant did not prove that EIC sent a humiliating email in
event 3, or that he gave Complainant a verbal performance appraisal in event 4. The Agency also
determined that Complainant’s mere assertion that the event 5 meeting was unscheduled, and that
he was humiliated in front of others was not sufficient to show that the event occurred as alleged.
The Agency found that the incidents, either individually or collectively, were neither severe nor
pervasive when judged by a reasonable person’s standard. The decision concluded that
Complainant did not prove that the Agency subjected him to discrimination as alleged.

On appeal, Complainant argues that the Agency’s final decision “misstates the facts and misapplies
the law.” For example, Complainant states that the decision was silent on the verbal abuse and
humiliation he suffered at the financial institution and that witnesses stipulated that Complainant
was verbally abused by EIC. Complainant states that EIC stated that Complainant being a “difficult
person” was documented in another employee’s EEO complaint, but that there is no such comment
in that complaint.

Complainant also argues that there was insufficient information because the Agency did not ask
one of the witnesses (W1) about event 4, and intentionally failed to obtain a statement from another
witness (W2), who was a “key witness.” Complainant states that the Agency directed the
investigator to not approach the financial institution to obtain the original laptop photo, and
Complainant believes that the photo was manipulated. Complainant requests that the Commission
reverse the Agency’s decision.

The Agency argues that Complainant has not proffered any reason for the Commission to not adopt
the findings and conclusions in its final decision. The Agency notes that Complainant only made
generalized assertions that management conduct stemmed from his membership in a protected
group, and that the management’s explanations established a legitimate, nondiscriminatory basis
for each instance. The Agency also states that Complainant did not establish that he was subjected
to unwelcome conduct that was based on his statutorily protected class. The Agency requests that
the Commission affirm its final decision.

ANALYSIS AND FINDINGS

Standard of Review

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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9,
§ VI.A. (Aug. 5, 2015) (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
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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”).

Harassment

Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of
the conditions of the Complainant's employment. See Enforcement Guidance on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of harassment
a Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected
to unwelcome verbal or physical conduct involving the protected class; (3) the harassment
complained of was based on the statutorily protected class; (4) the harassment had the purpose or
effect of unreasonably interfering with his work performance and/or creating an intimidating,
hostile, or offensive work environment; and (5) there is a basis for imputing liability to the
employer. See Humphrey v. United States Postal Service, EEOC Appeal No. 01965238 (Oct. 16,
1998).

We find that Complainant belongs to a statutorily protected class based on his protected EEO
activity, and that he was subjected to unwelcome verbal conduct. However, we find that
Complainant has not shown that the complained of conduct was in reprisal for his EEO activity.
For event 1, S1 stated that Complainant was not denied adequate resources, and that she assigned
two other examiners to work with Complainant. S1 also stated that she assigned Complainant as a
lead for a module because the other examiner would be on leave, and due to the amount of time
he would miss, S1 felt that Complainant would be better suited to lead. ROI at 276-7. Regarding
event 2, S1 stated that she never assigned seats for examiners, and witnesses confirmed that there
were no assigned seating arrangements and examiners chose where to sit. ROI at 279,484,500,504.

For event 3, EIC stated that he sent the email because the team was trying to learn the institution’s
loan operating system, and he discussed the system with the examiners to enable them to perform
their duties more efficiently. ROI at 418. Regarding event 4, there is no dispute that EIC stated
that Complainant was difficult to work with. However, there is no evidence that he made this
statement due to Complainant’s EEO activity. EIC stated that as they discussed the process for
reviewing the files, Complainant stated that he knew what he was doing because he had over 30
years of experience and that EIC did not need to tell him how to do his job. ROI at 419. While we
note that EIC stated that he learned that Complainant was “difficult” from another employee’s
EEO complaint, we do not find that this shows that EIC made his comment based on
Complainant’s EEO activity.2

For event 5, S2 stated that he conducted a meeting to discuss why Complainant left his
government-issued laptop unattended with an unlocked screen displaying unknown data. S2 stated
that the computer could have potentially included personally identifiable data, or confidential
information. ROI at 376.

2 Complainant was named as a responsible management official in Carly O. v. Consumer Financial
Protection Bureau, EEOC Appeal No. 0120152728 (Jul. 5, 2017).
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On appeal, Complainant argues that the Agency failed to ask W1 about event 4; however, W1
provided her statement regarding the January 23, 2018 conversation between Complainant and
EIC. ROI at 394. In addition, the record shows that the investigator repeatedly asked W2 for his
statement, and he did not respond. ROI at 479-81. Complainant also presents many additional
arguments in his appeal; however, we find that Complainant did not show that his protected EEO
activity was the basis for any of the complained of conduct. As such, we find that Complainant
has not established that the Agency subjected him to a hostile work environment in reprisal for his
protected EEO activity.

CONCLUSION

Accordingly, we AFFIRM the Agency’s final decision finding no discrimination.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). 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).
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COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

December 17, 2019
Date