0120073449
01-20-2009
Daniel Betz, Charles E. Holt, Timothy J. Molenkamp, and Erik H. Ries, Complainants, v. Michael B. Mukasey, Attorney General, Department of Justice, Agency.
Daniel Betz, Charles E. Holt, Timothy J. Molenkamp, and Erik H. Ries,
Complainants,
v.
Michael B. Mukasey,
Attorney General,
Department of Justice,
Agency.
Appeal Nos. 0120073557, 0120073479, 0120073449, 0120073436
Agency Nos. F056026, F056028, F056029, F056030
DECISION
Complainants filed appeals from the agency's final decisions concerning
their equal employment opportunity (EEO) complaints 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 appeals
are deemed timely and are accepted pursuant to 29 C.F.R. � 1614.405(a),
and are consolidated for joint processing in accordance with 29 C.F.R. �
1614.606.1 For the following reasons, the Commission AFFIRMS the agency's
final decisions.
BACKGROUND
At all times relevant to these complaints, complainants worked as
Electronics Technicians (ETs) in the agency's Detroit Field Office. In
March 2003, the ET staff was assigned a new second line supervisor (S1).
S1 stated that when the ET staff was assigned to him, his supervisor told
him that the ET staff needed to be "reigned in a bit." According to
complainants, during a meeting discussing the reassignment, S1 stated
that the ET staff was viewed as "rogues, renegades, and mavericks" and
"this time around things are going to be different. The first guy out
of line I am going to cut their balls off . . . uh, I mean cut them
off at the knees." S1 states that he told the ET staff in the meeting
that he would not tolerate unprofessional behavior and he was going to
"cut them off at the knees." S1 further stated that he never mentioned
cutting off anyone's testicles. However, he does remember saying, "if
they were going to shit in [his] backyard they better bring a shovel."
In early January 2004, an agency vehicle was going to be parked off agency
premises. There was a concern over the safety of the vehicle, and it was
decided by S1 that an alarm should be placed in the vehicle. S1 believed
that a regular car alarm would not be heard if it was triggered, so
he instructed complainants to install a house alarm in the vehicle.
Complainants felt this was inappropriate and voiced their concerns
to S1 through numerous emails and discussions, but S1 still ordered
complainants to install the alarm. S1 stated that the ET staff had no
alternative suggestions for securing the vehicle; therefore the alarm had
to be installed. Complainants believe that S1 ordered them to install
the alarm in hopes that it would fail so S1 could write them up.
On October 15, 2004, complainant Ries was instructed to write a weekly
report for all of the ET staff. Each squad is required to submit a report
of scheduled activities for the upcoming week and this particular week
the individual assigned to the task was absent on leave. Complainant
Ries expressed his discomfort writing the report since it was not his
usual job. S1 explained to complainant Ries that he had to write a short
paragraph including the general idea of what tasks normally are performed
in the office, and S1 would handle it from there. When complainant Ries
refused, S1 told him that he was being insubordinate and as a result
S1 was taking away his Bureau vehicle. However, S1 ultimately allowed
complainant Ries to keep his vehicle.
On December 23, 2004, S1 told complainant Molenkamp that because of his
inability to follow directions with regards to the sign-in procedures,
complainant Molenkamp would have to sign in with the squad secretary
every day at the Detroit Headquarters Office. S1 stated that he did
this because complainant Molenkamp continuously failed to provide time
and attendance information to the secretary. Complainant Molenkamp
was required to use the new sign-in procedures until January 5, 2005,
when S1 decided that he had shown improvement.
At a meeting on January 4, 2005, S1 allegedly told the ETs that he
liked some of them as individuals, but did not like them as a group.
Also around this time, complainants assert that S1 said the ET staff was
"immature idiots." S1 denies these statements.
On February 1, 2005, complainant Ries sent S1 and another supervisor
an email seeking clarification of the office priorities and policies.
Subsequently he was paged by S1, who asked complainant to follow him to
an empty office. According to complainant Ries, S1 slammed his keys on
the floor, wanted to know what complainant Ries' problem was, and made
complainant Ries fear that he was going to be physically assaulted. S1,
on the other hand, stated that he met with complainant Ries to discuss
how difficult things can be within the agency and that complainant Ries
had to be careful about what he put in writing. He stated that he took
complainant Ries to the private room in order to not embarrass him
in front of other employees, and at the end of the conversation they
shook hands. S1 describes the conversation as cordial, and at the end
it seemed as if they resolved some issues.
On March 3, 2005, S1 allegedly stated during a meeting that he was
"very unhappy that 'someone' had spoken to the Assistant Special Agent
in Charge without notifying [him]." Complainant Molenkamp felt this
comment was directed at him and with the intent of humiliating him in
front of his coworkers.
On April 6, 2005, S1 removed the parking spot reserved for the ETs in
the basement of the FBI's main office building in Detroit. According to
the record, the addition of two Special Agents required the use of the
parking spaces to be rotated, which resulted in some agents having to
take turns parking in an outside lot.
On April 28, 2005, complainants contacted an EEO Counselor. On May
9, 2005, complainants were informed that in an effort to reduce the
redundancy of the ET staff's administrative duties, they would no longer
be allowed to inventory the video and test equipment. Complainants
believe this was done in retaliation for contacting an EEO Counselor.
S1 asserts that this allowed the ETs more time to focus on their
mission-critical duties.
On May 14, 2005, complainants Molenkamp and Betz were scheduled to go to
a SWAT training exercise. S1 ordered that a newly hired ET go in their
place, despite complainants' expertise in the area. S1 stated that he
wanted other ETs trained in the SWAT equipment, procedures, and personnel
so that complainant Molenkamp was not the only ET who could assist the
SWAT team. Further, according to the Assistant Special Agent in Charge,
this was a field exercise that required the Special Agents to sleep in
tents, and complainant Betz could not sleep in a tent because he needed
to be able to plug in a machine that helped with sleep apnea.2
In June 2005, complainant Betz was notified that his assignment to the
Baseball All Star game was cancelled. According to the Assistant Special
Agent in Charge, the assignment was cancelled because FBI Headquarters
notified him that there would be no reimbursement for lodging of Resident
Agency personnel. For that reason, all Resident Agency personnel were
removed from the schedule to reduce cost.
On June 24, 2005, complainant Betz allegedly was notified that he would
be required to sign in each morning at the main office. S1 stated that
he was informed that complainant Betz was unaccountable and disappeared
for days at a time. S1 stated that he spoke to complainant Betz about
it, who broke down and cited personal issues for his lack of job focus.
S1 further stated that he never told complainant Betz to sign in every
morning, and that his behavior improved after the discussion.
On July 6, 2005, complainant Molenkamp was reassigned to office duties
as a result of an injured wrist. Complainant Molenkamp's doctor placed
him on light duty and restricted him from lifting over 15 pounds and from
using power tools. Complainant Molenkamp asserts that his assignment
to the office and remedial tasks was because S1 was angry that he could
not do the tasks that S1 wanted, and therefore was in retaliation.
On July 29, 2005, complainants were informed that the Bureau vehicles
they had been using would have to be rotated with other ETs. Complainants
believe this was done in retaliation for filing EEO complaints. S1 stated
that in April 2005, an investigation concluded that within the last 18
months ET staff had responded to emergencies only four times, which was
much fewer than other non-ET staff. It was determined that non-ET staff
needed more vehicles to respond to emergencies, but no additional vehicles
were available. Further, all of the complainants told both S1 and the
squad secretary that they no longer wanted to respond to emergencies.
Therefore, the number of vehicles for the ET staff was reduced from
seven to five. S1 allowed the opportunity for the five cars to be
rotated amongst the ET staff to ensure that everyone had equal access
to the vehicles.
On August 18, 2005, S1 told the Telecommunications Manager (TM)
that one of the newly hired ETs would be the Relief TM in his absence.
Complainants Molenkamp and Betz stated that they had more experience than
the two new ETs, and therefore should have been selected as Relief TM.
S1 stated that during a meeting with the ETs he asked for volunteer
relief supervisors. The two newest ETs were the only individuals who
volunteered for the position, therefore they were selected. The record
reveals that the two newest ETs supported S1's statement.
Further, S1 moved the location of the time and attendance registers
so that the shop secretary would have immediate access to them because
she was the person responsible for entry of the data into the computer
systems. This required all of the complainants to change the location
of where they signed in and out. After complainants complained about the
change of location, S1 moved the registry back to its original location.
Complainants believe the registry was moved in retaliation for filing
EEO complaints.
On September 30, 2005, complainant Holt, a licensed Christian Minister,
overheard S1 say the word "shit." S1 then asked a nearby Special
Agent if it was okay if he used the word "shit," to which the Special
Agent responded, "I don't care if you use the word 'shit,' and I am
a Christian." Complainant Holt believes this exchange was meant to
mock and offend him. Complainant Holt also alleges that S1 called
him a "bastard child", and S1 referred to himself as the "Squad 12 God."
Complainant Holt asserts that these were highly offensive to his religion.
Further, complainant Holt alleges that he was told by another individual
that S1 said the ETs were not good Christians.
Complainants stated that they reported S1's harassment to other management
officials, but they failed to address their concerns. The record
reveals that management met with ET staff and conducted investigations
into their claims on numerous occasions, but each time found that the
claims were frivolous and without merit.
On May 17, 2008, complainant Betz filed an EEO complaint of discrimination
on the bases of sex (male) and reprisal for prior protected EEO activity
when:
1. Between May 12, 2005, and June 30, 2005, he was removed from
participation in a SWAT training exercise, his assistance at the All-Star
game was cancelled, and he was required to report to the Grand Rapids
Resident Agency each morning to sign the time and attendance register;
2. On July 29, 2005, he learned that one of the new ETs was allowed to
serve as relief supervisor for the Telecommunications Manager in his
absence, and he was not given the same opportunity; and
3. Management officials at the Detroit Field Office have failed to
address the problems he was having with S1.
On May 17, 2008, complainant Holt filed an EEO complaint of discrimination
on the bases of sex (male), religion (Christian), and reprisal for prior
protected EEO activity when:
1. On March 14, 2003, and December 20, 2004, he was subjected to
threatening comments by S1; and
2. Between April 12, 2005, and September 30, 2005, one of his job
functions was removed, he was subjected to derogatory and threatening
comments, S1 threatened his direct supervisor to give him an assignment
to impede handling his EEO matter, access to his Bureau vehicle was
limited, he was required to submit a report of his daily activities,
and management officials at the Detroit Field Office failed to address
the problems he was having with S1.
On May 17, 2008, complainant Molenkamp filed an EEO complaint of
discrimination on the bases of sex (male) and reprisal for prior protected
EEO activity when:
1. In March 2003, S1 made threatening comments during a meeting;
2. Between January 7, 2004, and continuing through January 5, 2005, an
assignment was reassigned to a colleague and he was required to do another
colleague's work, he was subjected to derogatory and threatening comments,
he was told not to contact any management official at FBI Headquarters,
he was placed on daily reports, his Bureau assigned vehicle was taken
away for one day, and he was subjected to different time and attendance
procedures;
3. Between March 3, 2005, and continuing through July 31, 2005, he was
humiliated in front of coworkers, he was subjected to derogatory and
threatening comments, his access to a Bureau vehicle and parking was
limited, one of his job functions was removed, and due to an injury,
he was placed on a light duty assignment which involved performing the
Tech Agent and secretary's duties, although he was able to perform 95%
of the ET's duties; and
4. Between August 18, 2005, and continuing through September 30, 2005, he
has not been allowed to relieve the Telecommunications Manager (TM) in his
absence, although one of the new ETs has been allowed the opportunity to
relieve the TM, he was required to submit a report of daily activities,
and management officials at the Detroit Field Office failed to address
the problems he was having with S1.
On May 17, 2005, complainant Ries filed an EEO complaint of discrimination
on the bases of sex (male), and in reprisal for prior protected activity
when:
1. In March 2003, his supervisor made threatening comments during a
meeting;
2. Between January 7, 2004, through February 1, 2005, he was ordered
to perform job duties he believed were improper, derogatory comments
were made to him, he felt threatened during a closed door meeting with
his supervisor, and his assigned vehicle was taken from him for one day
without reason; and
3. Between May 9, 2005, through September 2005, one of his job functions
was taken away, he was subjected to derogatory comments, his access to
his assigned Bureau vehicle was limited, the Telecommunications Manager
and Squad Secretary documented his time and attendance records in a
manner contrary to Bureau policy, he was required to submit a report of
daily activities, and Detroit Field Office management failed to address
problems he was experiencing with the Supervisory Special Agent.
At the conclusion of the investigation, complainants were provided with a
copy of the reports of investigation and notices of their right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
complainants' request, the agency issued final decisions pursuant to 29
C.F.R. � 1614.110(b). The decisions concluded that complainants failed
to prove that they were subjected to discrimination as alleged.
ANALYSIS AND FINDINGS
As these are appeals from decisions issued without a hearing, pursuant to
29 C.F.R. � 1614.110(b), the agency's decisions are 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").
Harassment Based on Sex
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
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). Whether the harassment
is sufficiently severe to trigger a violation of Title VII and or the
Rehabilitation Act 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. Harris v. Forklift Systems, 510 U.S. 17 (1993).
Complainants allege that they were subjected to a hostile work environment
based on sex (male). To establish a prima facie case of hostile work
environment, a complainant must show that: (1) he is a member of a
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; and (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. Humphrey v. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. �1604.11.
In the instant case, we find that complainants failed to establish a prima
facie case of harassment. Specifically, complainants failed to establish
by a preponderance of the evidence that the harassment complained of was
based on their sex. For example, most of the incidents complained of
revolve around a difference in opinion in the way the job duties of the
ET staff should be performed, such as installing a car alarm, removing
redundant duties, moving an attendance registry, use of parking spots, and
a rotation of Bureau vehicles for emergency use. Other alleged incidents
revolve around S1's use of alleged harsh language. The record reveals
that the alleged harsh language was used both in front of the male ETs
and the female administrative staff. The only time sex was indicated
in the entire record was complainants' assertion that S1 stated he was
going to "cut their balls off," which S1 denies. Complainants assert
that if they were women they would have been treated differently by
S1, but there is no evidence in the record to help establish these
assertions. Further, complainants assert that S1 treated the ETs with
more animosity than any other division of employees under his supervision.
Assuming arguendo that this is true, this alone is not enough to establish
illegal discrimination under EEO laws, because there is no evidence in
the record that establishes that the different treatment was motivated
by discrimination based upon a protected basis. Therefore, we find that
complainants failed to establish the third prong of the prima facie case,
and therefore have not established a claim of harassment based on sex.
Even assuming that complainants established a prima facie case, we still
find that complainants have not shown by a preponderance of the evidence
that there were subjected to discrimination on the basis of sex.
Harassment Based on Religion
Complainant Holt also alleges that he was subjected to harassment on the
basis of his religion. Applying the same analysis for harassment that
was applied above, we find that complainant failed to establish that a
hostile work environment based upon his religion existed. Specifically,
we find that a reasonable person in complainant's position would not
have found the "shit" and the "I am the Squad 12 God" remarks offensive
to the point of a hostile work environment. Further, while the "bastard
child" remark and the "not good Christians" remark (which was not said to
complainant) may have been offensive, we find that they are not severe
or pervasive enough to rise to the level of a hostile work environment.
Therefore we find that complainant Holt failed to establish the fourth
prong of the prima facie case, and therefore cannot establish a claim
of harassment based on religion. Even assuming that complainant Holt
established a prima facie case, we still find that complainant Holt has
not shown by a preponderance of the evidence that he was subjected to
discrimination on the basis of religion.
Reprisal
Complainants also allege that they were subjected to reprisal in
various forms after they filed formal complaints of discrimination.
Complainants can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case
of reprisal by showing that: (1) he engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he was subjected to adverse treatment by the agency; and (4) a nexus
exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
Here, even assuming arguendo that complainants established a prima facie
case of reprisal discrimination, the agency articulated legitimate,
nondiscriminatory reasons for its actions. For example, complainants'
administrative duties were reduced to eliminate redundancy and to
allow complainant to spend more time on his mission critical duties.
Complainants' access to a Bureau vehicle was limited because non-ET
staff required Bureau vehicles in order to respond to emergencies, and
the ETs did not have as great a need for the vehicles because they did
not respond to as many emergencies. Further, the attendance registry was
moved to a location closer to the secretary so she could access it when
inputting the data into the computer. The two new ETs were selected for
the Relief TM position because they were the only ETs who volunteered for
the position. Finally, management did address complainants' concerns
when it conducted numerous investigations and meetings with S1 and
the ET staff, but the investigations concluded that the allegations of
harassment were without merit.
Complainants must now establish, by a preponderance of the evidence, that
the agency's articulated reasons are pretext for reprisal discrimination.
Complainants argue that because these acts happened in close proximity to
the filing of the EEO complaints, they must be the product of retaliation.
Temporal proximity alone is not enough to establish that the agency's
actions were the result of retaliation. Complainants failed to offer
evidence that would establish that reprisal discrimination more likely
than not played a role in the agency's actions. Therefore, we find
that complainants have not established their claims of reprisal
discrimination.
CONCLUSION
We AFFIRM the agency's final decisions finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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, DC 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 20, 2009
Date
1 Complainants requested that their appeals be consolidated. Further,
complainants requested that they be consolidated with the appeals of
three additional coworkers. We grant the complainants' request in so
far as these four appeals will be consolidated together. However, the
Commission finds that we cannot consolidate the remaining appeals, because
one coworker entered into a settlement agreement prior to the date of this
decision, Wagner v. Department of Justice, EEOC Appeal No. 0120073728,
and the remaining appeals have already been decided by the Commission.
See Bavol v. Department of Justice, EEOC Appeal No. 0120073477 (January
28, 2008) (agency decision finding no discrimination affirmed), request
for reconsideration denied, EEOC Request No. 0520080356 (April 22, 2008);
and DeVos v. Department of Justice, EEOC Appeal No. 0120074004 (February
28, 2008) (agency decision finding no discrimination affirmed), request
for reconsideration denied, EEOC Request No. 0520080393 (April 18, 2008).
We note that even if all of the appeals had been consolidated, it would
not have changed the disposition of these appeals.
2 We note that complainant Betz did not allege disability as a basis of
discrimination in his complaint.
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0120073436
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
11
0120073557, et. al.