Dante B.,1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Mar 13, 2020

2019005188 (E.E.O.C. Mar. 13, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dante B.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2019005188 Agency No. DAL180925SSA DECISION Complainant timely appealed to the Equal Employment Opportunity Commission (“EEOC” or “Commission”), pursuant to 29 C.F.R. § 1614.403, from a June 12, 2019 Final Agency Decision (“FAD”) concerning an 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., BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Lead Legal Assistant/Senior Case Technician, GS-09, at the Agency’s Houston North Hearing Office, Office of Hearings Operations, located in Houston, Texas. On November 13, 2018, Complainant filed an EEO complaint alleging that the Agency subjected him to a hostile work environment/harassment on the basis of race (African-American) when, on May 23, 2018 to April 4, 2019, management failed to act on the use of the “N” word in the workplace. At the conclusion of its investigation, the Agency provided Complainant with a copy of the report of investigation (“ROI”) and notice of his right to request a FAD or a hearing before an 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. 2019005188 2 EEOC Administrative Judge (“AJ”). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). The record reveals the following relevant facts: Complainant’s first level supervisor (“S1,” white), was a Group Supervisor, GS-13, his second level supervisor (“S2,” Hispanic/Latino) was the Hearing Office Director, and his third level supervisor (“S3,” white) was the Hearing Office Chief Administrative Law Judge. On May 23, 2018, one of Complainant’s coworkers (“C1,” Asian/Indian), a Senior Case Technician, GS-7, began talking with Complainant about a situation where her daughter was being harassed at school. C1 told Complainant that one of the students called her daughter the “N” word. C1 and Complainant both testify that they had hardly spoken before this conversation, which Complainant described as occurring “out of the blue.” He states that he was “thrown off” when C1 referenced the “N” word, and Complainant explained that it was extremely offensive, and inappropriate language for the office. A coworker (“C2,” African-American) who sat nearby, witnessed Complainant and C1 conversing about C1’s daughter being bullied at school. C2 testified that she walked away, and when she returned, “it seemed like the dynamics changed.” According to C2, C1 was crying, and “apologizing and saying she didn’t mean it like that and she was just trying to explain what happened to her daughter.” Complainant does not dispute that C1 apologized and ceased using the word after he told her it was inappropriate. Complainant reported the incident to S1, S2, and S3 in an email with the subject “Inappropriate Language Use in a Friendly Discussion.” The email also stated, “[t]his is the third time since we [have] been at this location that someone chose to use the same word in a friendly discussion. It has to stop now. Whether it’s training or counseling this has to stop.” On or about May 23, 2018, S1 discussed the matter with Complainant, then counseled C1 about inappropriate language. S1 testified that she advised C1 that “any language in that manner will not be tolerated and cannot be used in this environment,” and C1 assured her it would not happen again. There is no evidence C1 used the “N” word following this counseling. On June 1, 2018, Complainant visited S3 in his office, and informed him he was dissatisfied with S1’s response after he reported that C1 used the “N” word. Complainant also revealed that “some years earlier,” a security guard (African-American) called him the “N” word during a verbal confrontation, and 3 or 4 years before that, a paralegal (white) used the “N” word in Complainant’s presence when describing words kids were using at school, and his grandmother’s use of the word. This was the first time S3 heard of the incidents related to the security guard or paralegal, and he felt they occurred too long ago to pursue. 2019005188 3 As for Complainant’s concerns about S1’s response to C1, S3 emphasized that racial epitaphs are not tolerated in this office, but in doing so, referenced the “N” word. S3 did not perceive Complainant, who he had worked with and regularly conversed with for nearly 20 years, to be offended. On June 11, 2018, Complainant came to S2’s office regarding both C1 and S3’s use of the “N” word. Complainant recounted the May 23, 2018 incident again (and his dissatisfaction with S1’s handling of it), notified him that S3 said the “N” word when they discussed the matter on June 1, 2018, and of the incidents with the security guard and paralegal. S2 asked if he reported the earlier two incidents to management, as this was the first time he heard of them. According to S2, Complainant said he did, but could not provide the name of the individual he reported the incidents to. S2 arranged, in consultation with Complainant, an “all hands” staff meeting to cover “office etiquette and proper language/decorum.” S2 testified that he decided to hold the meeting based on Complainant’s email suggestion of training. S2 intended the meeting as a “remedy” for the May 23, 2018 incident, and “to cover any other allegation from [Complainant].” S2 also investigated the incidents Complainant raised by speaking with C1, who reiterated she would not say the word again, and asking S3 about Complainant’s allegation that he said the “N” word as well. S3 explained that he used the unabbreviated “N” word, to confirm what word Complainant was referring to, and in the context of stating such language would not be tolerated. S2 also counseled the security guard (African American), who explained that sometime in 2015, he accidentally closed the door in Complainant’s face. The security guard alleged that Complainant accused him of only opening the door for white people, and called him an “Uncle Tom,” and the security guard responded with the “N” word. The security guard apologized to S2 and said it would not happen again. Both S2 and S3 testify that they had never had any prior complaints about the security guard, who had worked at the facility for the past ten years. It is unclear if the paralegal still worked for the Agency. On June 13, 2018, S2 held the staff meeting. Among other things, S2 “clearly stated that racial undertones, words, and epithets along with any other discriminatory language would not be tolerated or permitted in our office.” At the end of S2’s presentation, S3 interjected, if anyone has a problem with a Judge using inappropriate language they should come see him. Afterward, Complainant came to S2’s office, shook his hand, and thanked him for his presentation. Although Complainant mentioned that he did not appreciate S3 “chiming in,” S2 believed Complainant’s concerns were resolved. There is no evidence that C1 or S3 used the “N” word since the incidents raised by Complainant. The FAD concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. 2019005188 4 ANALYSIS AND FINDINGS 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, (“EEO MD-110”) at Chapter 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 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”). To prove his harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of his race. Only if Complainant establishes both hostility and motive, will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice 915.002 (Jun. 18, 1999). Consistent with the Commission's policy and practice of determining whether a complainant's harassment claims are sufficient to state a hostile or abusive work environment claim, the Commission has repeatedly found that claims of a few isolated incidents of alleged harassment usually are not sufficient to state a hostile work environment claim. See Phillips v. Dep’t of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Health & Human Serv., EEOC Request No. 05940481 (Feb. 16, 1995) However, the Commission has previously held that, under certain circumstances, a limited number of historically racial epithets or slurs in the workplace may constitute harassment based on race and violate Title VII. See EEOC Compliance Manual, Section 15, “Race and Color Discrimination,” No. 915.003, 15-38 (April 29, 2006). We previously noted that the use of the racial epithet “N” word is a “highly charged” and “dredge[s] up the entire history of racial discrimination in this country.” See Brooks v. Dep't of the Navy, EEOC Request No. 05950484 (Jun. 25, 1996). see also Cerros v. Steel Technologies, Inc., 288 F.3d 1040, 1047 (7th Cir. 2002) (While there is no magic number of slurs that indicate a hostile work environment, an unambiguously racial epithet falls on the “more severe” end of the spectrum). Supervisor Harassment On June 1, 2018, S3 discussed Complainant’s concerns about S1’s response to C1 and said he had never heard any racial epithet in the workplace, and would not condone it. He states, “[Complainant] participated in this conversation discussing with me the origins of the “N” word.” He acknowledges stating the full word, but only in the context of the conversation, and to clarify what “N” word Complainant was referring to. 2019005188 5 S3 was unaware that he offended Complainant, who he “generally considered to be his friend and not just a subordinate, after all the years of interaction.” S1 and S2 both testify in the record that Complainant acknowledged the word was not directed at him when S3 said it. Based on the context and that it occurred only once, we do not find S3’s use of the “N” word sufficiently severe and pervasive to constitute harassment in violation of Title VII. Co-worker Harassment In a case of co-worker harassment, an agency is responsible for acts of harassment in the workplace where the agency (or its agents) knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (June 18, 1999). See Jones v. Dep’t of Labor, EEOC Appeal No. 01A41672 (Oct. 22, 2004) (management official’s failure to address an ongoing tense situation between the complainant and a co-worker based on her protected class stated a claim under Title VII). Complainant has not shown that C1’s a use of the “N” word on May 23, 2018, was motivated by racial animus. In the context of their conversation, C1 did not direct the “N” word at Complainant or use it in a manner intended to disparage African Americans. Assuming, arguendo, she singled him out based on his race, to request advice about her daughter being harassed with the “N” word, he has not demonstrated that this single act was sufficiently severe or pervasive to constitute a violation of Title VII. It is undisputed that C1 was not in a supervisory role with authority over Complainant, she sincerely apologized to Complainant when she realized she offended him, and ceased using the “N” word as soon as he informed her it was offensive and inappropriate. Moreover, the evidence establishes that the Agency took immediate and appropriate corrective action. S1 counseled C1 on or close to the date of the incident, and there is no evidence that C1 used the “N” word in the workplace since then. S2 also counseled the security guard although the alleged incident happened years before. Finally, S2 also arranged the “all hands” meeting to address Complainant’s general concern over employees’ use of the “N” word in the workplace. Complainant argues the Agency failed to take sufficient action, or take his claims seriously, because management did not report the matter to a Harassment Prevention Officer (“HPO”) in accordance with Agency Policy. S1, S2, and S3 acknowledge that they did not report the incidents, but explained that they believed Complainant had not experienced harassment. S1 reasoned that Complainant “stated that he did not feel the word was directed toward him and felt that [C1] was just trying to get advice.” They decided the matter did not qualify as harassment and the matter was resolved when management conducted both the counseling and training Complainant suggested in his May 23, 2018 email. Given the immediate and appropriate corrective action taken in response to the alleged underlying harassment, management’s decision not to report Complainant’s complaint to an HPO is not indicative of a failure to take appropriate corrective action in accordance with EEOC regulations. 2019005188 6 Having thoroughly reviewed the record and the parties’ contentions on appeal, including those not specifically addressed herein, Complainant has not established discrimination as alleged. CONCLUSION Accordingly, we AFFIRM the Agency’s Final Decision. 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). 2019005188 7 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 March 13, 2020 Date