0120142630
12-22-2016
Clinton R.,1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Clinton R.,1
Complainant,
v.
Loretta E. Lynch,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120142630
Hearing No. 450-2013-00028X
Agency No. P20100189
DECISION
Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's June 11, 2014 final order, 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.
ISSUE PRESENTED
The issue presented is whether the Agency's Final Order, adopting the Administrative Judge's decision, is supported by the record.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Deputy Chief of the Consolidated Processing Unit, GS-14, at the Agency's Human Resources Services Center facility in Grand Prairie, Texas.
On February 16, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), and reprisal for prior protected EEO activity under Title VII, when:
1. From October 8, 2009 to February 18, 2010, he was subjected to a hostile work environment, including not being given access to the Consolidated Processing Unit Group Wise Mailbox, having his authority circumvented, being excluded from staff meetings, having management rescind an offer of reassignment, not being recognized in the form of awards and being counseled regarding proper call-in procedures when requesting sick leave, and
2. On November 19, 2009, he was discriminated against on the basis of his race and / or sex, when he was not selected for the position of Chief, Consolidated Staffing Unit.
As background, Complainant's non-selection promotion claim was held in abeyance, along with his race and sex claims. He appealed. On June 30, 2012, the Office of Federal Operations issued a decision modifying an earlier decision by the Agency, which held all of his claims in in abeyance, rather than the portion of the complaint which alleged non-selection on the basis of reprisal. OFO ordered the Bureau of Prisons to process the hostile work environment claim on the bases of race, sex and reprisal and also to process the November 19, 2009 non-selection on the basis of race and sex. This is a decision on the merits following the remand.
Facts
Complainant is an African-American male. Complainant had prior EEO activity. Complainant filed a formal complaint under Agency case number BOP-2008-0633 on September 23, 2008.2
The pertinent facts show that Complainant reported to the Chief, Consolidated Processing Unit (Caucasian, Female) (RMO1). RMO1 testified that she was unaware of Complainant's prior activities. His second level supervisor was the Chief of the Consolidated Employee Services Center. Complainant's unit (Consolidated Processing Unit) was one of the four units under the RMO2. He testified that when Complainant was assigned to him, Complainant started to tell RMO2 about an EEO complaint he had filed at a previous duty station and he informed Complainant that he did not need to know the prior history.
Claim 1 - Group Wise Access
Complainant testified that he was not being given access to the Consolidated Processing Unit Group Wise Mailbox, but his female coworker was given access. RMO1 testified that she had ownership of the mailbox. She denied that she denied him access, but she could not recall who had access to the mailbox. Complainant disputed this. He stated that two others, including a White female, had access, but he did not. He acknowledged that he had not raised this as an issue with her.
Claim 2 - Authority Circumvented
He testified that RMO 1 undermined his authority when she went directly to his subordinates to ask them questions, rather than going through him. RMO 1 testified that she would go directly to a subordinate if the supervisor was unavailable or if she needed a quick answer. RMO2 testified that all supervisors often go directly to employees in other units if they have questions.
Claim 3 - Excluded from Meetings
He testified that he was being excluded from staff meetings and that sometimes his entire staff was excluded. RMO1 testified that participation at the meeting depended on the subject matter of the meeting. She denied that she excluded Complainant for unlawful reasons.
Claim 4 - Rescission of Offer of Reassignment
RMO 2 testified that, following a meeting with Complainant and RMO1, RMO2 testified that he told the Complainant that if he was interested, he would see if the Deputy Chief of the Benefits Unit would be interested in swapping positions, with the Director's approval. The Complainant stated that he would be interested. RMO2 contacted the current Deputy Chief of Benefits, but she was not receptive to the idea of trading positions. No reassignments were made.
Claim 5 - Awards
Complainant compares his treatment to that provided to his co-worker, identified as a Caucasian female. He contends that he was not being recognized in the form of awards and that his team was excluded. The record included some testimonial support for Complainant's position. One witness testified that she observed a meeting in which awards were being discussed and Complainant was not included. Complainant received an award of $750, as did the Caucasian female comparator. He did not receive a quality step award because he was at the top step of his grade. RMO2 testified that Complainant's role in the e-OPF project did not rise to the level of a national award.
Claim 6 - Counseled regarding Sick Leave
The Agency policy requires that an employee call in and speak with his or her supervisor prior to the start of the shift if the employee is unable to report for duty at his or her assigned time. In February of 2010, RMO 1 counseled Complainant regarding an incident in which she thought that he did not call in properly and was out of the office. He was counseled regarding proper call-in procedures when requesting sick leave.
RMO1 testified that she believed that Complainant did not call to speak with the supervisor and called in well after the start of the shift and that he spoke with her administrative assistant. Complainant testified that he was not late for work on the date in question. He stated that he had been out for several days and, upon his return, he attempted to contact RMO 1 to advise her that he was in the office. RMO1 mistakenly assumed he was calling in late. She summoned him into her office for counseling. Complainant disputed that he was absent and noted that the Agency did not produce any leave records to support their claim during the hearing.
Claim 7 - Non-Selection
Around September 2, 2009, Complainant applied for the position of Chief, Consolidated Staffing Unit, GS-14, under Vacancy Announcement Number CESC-2009-0028. Complainant was one of three individuals who were listed on the Exception Certificate. IF, p. 199. On November 19, 2009, the Agency selected a Caucasian male for the position.
RMO2 was the recommending official for the position. RMO2 ranked an African-American female as his first choice and the selectee (Caucasian male) as his second choice. He testified that he did not recommend Complainant because he believed Complainant's staffing experience was out of date. RMO's recommendations were forwarded to the Deputy Assistant Director of Human Resource Management (African-American, male) (RMO3). He testified that he believed that the selectee was the best qualified and overrode RMO2's recommendation. He testified that the selectee stood "head and shoulders" above the rest of the candidates based on his experience and leadership skills.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation. Complainant timely requested a hearing a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
The AJ held a hearing on December 3, 2013, December 4, 2013 and March 13, 2014. Two witnesses, including Complainant, testified in support of Complainant's position. Complainant was also represented at the hearing.
The AJ found that, "even assuming the facts as asserted by the Complainant, the evidence is insufficient to show that the Complainant was subjected to an atmosphere which unreasonably interfered with his work performance or was intimidating, hostile or offensive. Nor was there evidence that showed that the treatment of the Complainant was in any way due to his race, sex, or in reprisal for EEO activity." With regard to the non-selection, the AJ found that "there is no evidence that the Complainant was plainly superior to the selectee." She also noted that two of the witnesses were of the same race and sex as the Complainant and both testified that they believed that the selectee "was the best person for the position in question." The AJ concluded that the evidence did not prove that the Agency's reasons for its actions were a pretext for discrimination.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant contends that that the AJ unfairly limited the testimony which supported Complainant's claims. He asserts that he established a prima facie case of discrimination on the basis of race, sex and reprisal. He claims that three white males, one Asian female and a white female were all treated more favorably than Complainant. In addition, he states that the testimony was sufficient to show that he was subjected to a hostile and offensive atmosphere which unreasonably interfered with his work performance. With regard to the non-selection, Complainant attacks the credibility of the witness by asserting that the witness (RMO2) failed to properly "detail Complainant's experience" when he referred to it as "stale." Complainant asserts that RMO2 failed to credit eight years of Complainant's experience (from November 1995 to July 1997 when he served as the Human Resource Manager) and his years of service from 1999 to 2005 as a GS-14 Human Resource Administrator in the Bureau of Prison's Western Regional Office. Complainant also argues that the AJ improperly allowed into evidence testimony of an African American male who testified that he believed that the selectee stood "head and shoulders" above the rest of the candidates. Complainant argues that the witness was not on the Judge's approved witness list and the Judge improperly allowed his testimony even after objection by the Complainant's representative.
The Agency asserts that the AJ made appropriate credibility determinations and that there is no reason to disturb the Administrative Judge's decision finding no discrimination.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (Aug. 5, 2015).
Section 717 of Title VII states that "[a]ll personnel actions affecting employees or applicants for employment in executive agencies "shall be made free from any discrimination based on race, color, religion, sex or national origin." In addition, Title VII's federal sector law requires federal agencies to proactively ensure that the workplace is made free of discrimination, including retaliation. To prevail in an individual disparate treatment claim, Complainant must establish that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. Waters, 438 U.S. 567, 576 (1978).
To establish a claim of harassment, Complainant must show that: (1) he is a member of 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 protected class; (4) the harassment had the purpose or effect of unreasonably interfering with the work environment and /or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. Johnson v. Department of Homeland Security (Immigration and Customs Enforcement), EEOC Appeal No. 0120113331 (July 1, 2014). The evaluation "requires careful consideration of the social context in which particular behavior occurs and is experience by its target." Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998).
With respect to element (5), an agency is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee. See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). Where the harassment does not result in a tangible employment action, an agency can raise an affirmative defense, which is subject to proof by a preponderance of the evidence, by demonstrating: (1) that it exercised reasonable care to prevent and correct promptly any harassing behavior; and (2) that the complainant unreasonably failed to take advantage of any preventive or corrective opportunity provided by the agency or to avoid harm otherwise. See Burlington Industries, supra.
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create a hostile or abusive working environment." The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive" and the complainant subjectively perceived it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id at 23.
Generally, the Commission has repeatedly found that claims of a few isolated incidents of alleged harassment usually are not sufficient to state a harassment claim.
In this case, the AJ found the evidence failed to show a hostile environment. Her determination was based on her consideration of the testimony of the witnesses and the absence of evidence that the Agency's decisions were motivated by Complainant's race, sex or prior EEO activity.
Although Complainant challenges some of the factual determinations (such as questioning his ranking and whether his managerial experience was fully credited due to his years of service), Complainant does not offer evidence sufficient to show that the AJ erred in her determinations. Moreover, there is no objective evidence that so contradicts the testimony, or the testimony so lacks in credibility, that a reasonable fact finder would not credit it. For all of these reasons, we discern no reason to disturb the AJ's decision, which was adopted by the Agency.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 tends 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), 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. The requests 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 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 (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 22, 2016
__________________
Date
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.
2 On November 23, 2012, Complainant filed an appeal from the Agency's October 5, 2011 final decision. OFO issued its determination on August 28, 2015, finding no discrimination.
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