Dominic S.,1 Complainant,v.Sally Jewell, Secretary, Department of the Interior (National Park Service), Agency.

Equal Employment Opportunity Commission

Sep 22, 2016

0120150162 (E.E.O.C. Sep. 22, 2016)

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

Dominic S.,1
Complainant,

v.

Sally Jewell,
Secretary,
Department of the Interior
(National Park Service),
Agency.

Appeal No. 0120150162

Hearing No. 532-2014-00056X

Agency No. NPS-13-0151

DECISION

The Commission accepts Complainant’s appeal from the Agency’s September 24, 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. The Commission’s review is de novo. For the following reasons,
the Commission AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Laborer at the
Agency’s Independence National Historic Park in Philadelphia, Pennsylvania. On January 16,
2013, Complainant’s supervisor (S1) provided instructions to Complainant and other
employees regarding the removal of magnesium chloride (salt) bags from trucks. Complainant
claimed that S1 remarked that they could leave the salt on the trucks and “could make some
money selling it in the hood.” Additionally, that same day, Complainant went to S1’s office to
discuss a leave request. While discussing the leave request, Complainant claimed that S1 told
him “not to stress” and that “when I am stressed, I go home at lunch and clean my gun with
my dogs.” Complainant filed a Voluntary Statement with the Park’s Law Enforcement

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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Rangers regarding this conversation with S1. The Law Enforcement Division conducted an
investigation, and ultimately took no further action.

On March 1, 2013, Complainant filed a formal complaint alleging that the Agency subjected
him to a hostile work environment on the basis of race (African-American) when on January
16, 2013, his supervisor (S1) made a racial remark "they could leave the magnesium chloride
(salt) on the trucks, and they could make some money selling it in the hood” to him; and on
January 16, 2013, S1 made a comment "not to stress, and when I am stressed, I go home at
lunch and I clean my gun with my dogs," which he felt was threatening.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing, but the AJ assigned to the case granted summary judgment in favor of the
Agency and issued a decision on September 12, 2014.

In the decision, the AJ determined that even assuming Complainant’s allegations as true, the
statements were not sufficiently severe or pervasive to alter the conditions of Complainant’s
employment and create an abusive working environment. The AJ noted that both statements
were made in the course of one day and neither statement alone is enough to create an
objectively hostile work environment. As a result, the AJ found that Complainant was not
subjected to a discriminatory hostile work environment.

The Agency subsequently issued a final order fully implementing the AJ’s decision. The
instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ erred in granting summary judgment.
Complainant argues that the AJ failed to consider the totality of the circumstances.
Complainant claims that S1 has a “rooted problem with African-Americans and other
minorities.” Complainant alleges that S1 made the comments for the sole purpose to intimidate
and harass him. Accordingly, Complainant requests that the Commission reverse the final
order.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is
“genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect
the outcome of the case.

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Hostile Work Environment

To establish a claim of harassment a complainant must show that: (1) he belongs to 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 his statutorily protected class; (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; and (5)
there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682
F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or
pervasive to alter the conditions of [complainant's] employment and create an abusive working
environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).

Therefore, 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 of those
elements, hostility and motive, will the question of Agency liability present itself.

Upon review, the Commission concurs with the AJ’s findings and conclusions. Construing the
evidence in the light most favorable to Complainant, the Commission concludes that
Complainant did not prove that he was subjected to conduct sufficiently severe or pervasive to
establish a hostile work environment. 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). The record indicates that S1’s comments were
isolated incidents occurring on one day. The Commission has held that, under certain
circumstances, a single, extremely serious incident of harassment may be sufficient to
constitute a violation of Title VII. See EEOC Compliance Manual, Section 15, “Race and
Color Discrimination”, No. 915.003, 15-38 (Apr. 19, 2006). However, under the specific
circumstances present, the Commission finds that Complainant’s claim fails to rise to the level
of objectively unreasonable behavior that would trigger a violation of Title VII. While S1’s
comments were inappropriate and do not belong in the workplace, the Commission finds that
the insularity and isolated nature of the conduct at issue was insufficiently severe or pervasive
to establish a discriminatory hostile work environment.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency's final order, because the Equal Employment Opportunity Commission
Administrative Judge’s issuance of summary judgment was appropriate and a preponderance of
the record evidence does not establish that discrimination occurred.

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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 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), 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.

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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

September 22, 2016
Date