0120080468
06-09-2010
Edward Eitches, Complainant, v. Shaun Donovan, Secretary, Department of Housing and Urban Development, Agency.
Edward Eitches,
Complainant,
v.
Shaun Donovan,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 0120080468
Hearing No. 100-2005-00822X
Agency No. 0G0402
DECISION
On November 5, 2007, complainant filed an appeal from the agency's October
4, 2007 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 appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final order.
ISSUE PRESENTED
Whether substantial evidence supports the conclusion that the agency
did not subject complainant to discriminatory or retaliatory harassment.
BACKGROUND
At the time of events giving rise to this complaint, complainant
worked as a Senior Trial Attorney in the agency's Insured Housing
and Community Development Litigation Division in Washington, D.C.
On September 23, 2004, complainant filed an EEO complaint alleging that
he was discriminated against on the bases of race (White), sex (male),
religion (Jewish), and reprisal for prior protected EEO activity [under
Title VII] when,
(1) on or about February 26, 2004, the agency restricted his access to
the Labor and Employee Relations Division ("LERD");1 and
(2) on July 28, 2004, a Human Resource Specialist (HRS) in LERD slandered
him regarding sexual harassment during a grievance meeting in which
complainant was appealing a reprimand he had received.2
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). 3 Complainant timely
requested a hearing and the AJ held a hearing on February 7, 2007 and
issued a decision on September 28, 2007.
AJ Decision
The AJ found that complainant has not demonstrated by preponderant
evidence that the conduct complained of, however inappropriate some of it
may have been, was based on his statutorily protected classes. Addressing
incident (1), the AJ found that the testimony of record supports that the
LERD restriction was implemented not on account of complainant's race,
sex, religion, or prior EEO activity, but because a LERD employee (E1)
had filed an EEO complaint against complainant. The AJ noted that the
Discrimination Complaints Manager credibly testified that the agency
had a legitimate reason for restricting complainant's access to LERD.
She testified that E1's sexual harassment complaint against complainant
included "severe allegations," which required the agency to separate E1
and complainant. The AJ concluded that the LERD restriction represented
the agency's legitimate effort to develop procedures whereby complainant
could continue to conduct his business with LERD, while ensuring that
complainant and E1 remained separated.
The AJ noted complainant beliefs that the LERD restriction was an
inadequate response to the situation, that it lasted too long, and
that other solutions, such as transferring E1 to another office, would
have better responded to the situation.4 The AJ found, however, that
there was no evidence that the restriction was based on complainant's
statutorily protected classes. The AJ found that complainant simply
did not agree with the agency's efforts to respond to the situation.
Moreover, the AJ found that the record did not support complainant's
contention that the LERD restriction was "race-based." The AJ found that
in essence, complainant's contention in this regard is that LERD "hated"
him because he was a good lawyer and a good union president, and the
"white politicos" would listen to him. According to complainant, LERD
used the restriction to undermine his authority as union president and
to "get at him." The AJ found that even assuming arguendo this were the
case, such an assertion does not demonstrate that the restriction itself
was race-based. Rather, it would support that LERD officials disliked
complainant for being an effective union president, and, as such, used
the LERD restriction to their advantage.
Next, addressing incident (2), the AJ found that the record did not
show that HRS made the July 28, 2004 statement at issue because of
complainant's statutorily protected class(es). The AJ found that it is
undisputed that HRS made a statement to the effect of "[W]hy shouldn't
- we have investigated [the] six other people you sexually harassed."
The AJ found that HRS conceded that he has had "a lot of issues in
dealing with complainant," but denied that these issues were based on
complainant's race, and attested that, in fact, a majority of the people
with whom he deals at HUD are also white. HRS further attested that he
made the statement based on allegations or passing remarks that he had
heard about complainant engaging in such behavior, and again, testified
that he regretted making the statement.
The AJ noted that based on her observation of HRS at the hearing,
he credibly testified as to his reasons for making the inappropriate
statement and the fact that it was not based on complainant's race. In so
finding, the AJ noted that the Assistant General Counsel and head of the
FOIA Division in the Office of General Counsel (AGC) attested that HRS
"had some animosity toward white people" and she believed his statement
had been based on racial animus. The AJ noted that while she found that
AGC was a credible witness, she found that her mere speculation that
the statement was racially motivated insufficient to find that it was.
The AJ then addressed certain e-mail evidence contained in the record,
which served as background evidence, and which the AJ found to be the
most compelling demonstration of unwelcome conduct to which complainant
was subjected.5 The AJ noted that she carefully reviewed the e-mails
that were in the Report of Investigation, and found that, while they were
"spiteful and mean-spirited," there was insufficient evidence from which
to conclude that they were based on complainant's statutorily protected
classes. The AJ noted that these e-mails accuse complainant of harassing
women, financial impropriety, and engaging in other criminal behavior, but
she found that there was only one e-mail that could even be interpreted as
being related to complainant's race. Specifically, this e-mail accuses
complainant of getting away with assault, and that there was "a white
wash." 6 The AJ concluded that complainant's harassment claim failed,
and found no discrimination. The agency subsequently issued a final
order adopting the AJ's finding that complainant failed to prove that
he was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
In a very lengthy and detailed brief on appeal, complainant reiterates his
version of all relevant facts. As to the LERD restriction, complainant
contends that an investigation should have taken place concerning the
allegations of sexual harassment, and he should have been disciplined
if found to have done anything improper.7 He states that the AJ never
addressed the legality of the LERD restriction or the fact that it had a
serious impact on his ability to do his job; she simply found that it was
not race-based. Complainant contends that accordingly, the AJ erred.
Complainant also contends that HRS' testimony was not credible. He points
out, among other things, that HRS was not able to name the individuals
whom complainant supposedly sexually harassed. Addressing race, sex and
religion specifically, complainant states: "There so [sic] much in the
record that demonstrates racial animus and disparate treatment. There is
so much contradictory testimony among the agency witnesses. Yet somehow,
the Judge did not find discrimination." He explains that the record is
replete with testimony that HUD is a racially-charged environment.
Complainant also contends that a claim that he raised concerning a
reprimand received on March 13, 2004, should not have been dismissed
because what he was alleging in his EEO complaint was different than
what he grieved. That is, he is claiming that the manner in which
the reprimand was issued (not the issuance of the reprimand itself)
was discriminatory.
In response to the appeal, the agency contends that he AJ's decision
is supported by substantial evidence in the record. The agency denies
that procedural errors were committed, and notes as to the dismissal
of the reprimand claim that because the manner in which complainant's
reprimand was issued is inextricably intertwined with the reprimand
itself, which was grieved, this claim was properly dismissed under 29
C.F.R. � 1614.107(a)(4).
ANALYSIS AND FINDINGS
Initially, we concur that the reprimand issue is subject to dismissal
under 29 C.F.R. � 1614.107(a)(4) because a claim concerning the manner the
reprimand was issued is inextricably intertwined with the subject of the
previously filed grievance, i.e., the issuance of the reprimand itself.
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, � VI.B. (November 9, 1999).
To establish a claim of harassment a complainant must show that: (1)
they belong to a statutorily protected class; (2) they were subjected to
harassment in the form of unwelcome verbal or physical conduct involving
the protected class; (3) the harassment complained of was based on
their 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). The harasser's conduct should be evaluated
from the objective viewpoint of a reasonable person in the victim's
circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc.,
EEOC Notice No. 915.002 at 6 (March 8, 1994).
Upon review, we find that complainant's harassment claim fails because he
has not shown that the agency's conduct as set forth in incidents (1) and
(2) was motivated by his sex, race, and/or religion or in reprisal for
engaging in EEO activity. In so finding, we note that the AJ properly
considered the hostile emails sent to complainant between 2002 and 2005
as background evidence only since (although clearly inappropriate and
arguably racist and/or anti-semitic in parts) the emails were sent to
complainant solely in his capacity as union president, and were authored
by individuals other than those who committed the alleged harassment in
incidents (1) and (2), so they are not part of the same conduct alleged
to be harassment at issue in the instant complaint.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the FAD.
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
_06/09/10_________________
Date
1 According to complainant, the restriction was that he could not go to
the LERD office unless he called fifteen minutes in advance so that an
individual (E1) who had brought harassment allegations against him could
leave first. He asserts that this restriction precluded him from going
to that office. Complainant states he also could not call the general
telephone number for that office. He states that he could only telephone
individuals in that office and if they were not in, and he could not dial
"0". ROI, Ex. F2. The agency states that the restriction was later
modified so that complainant was permitted to contact LERD managers
in the event that he could not locate a LERD specialist. See Agency
Opposition Brief, at 3.
2 Complainant testified that during the meeting, HRS "out of nowhere,"
stated to him: "[W]hy shouldn't - we have investigated [the] six other
people you sexually harassed." Complainant testified that he asked HRS
what he was talking about, to which HRS replied: "[Y]ou don't want to go
there." Complainant testified that he later brought up HRS's statement
to him, and that HRS characterized it as a joke or a hypothetical, but
then also claimed it was based on what some people had told him about
complainant sexually harassing them. The record indicates that HRS was
verbally counseled by management that his statement was inappropriate.
3 Complainant also alleged that on March 13, 2004, he was issued a written
reprimand by the Assistant General Counsel, Litigation Division, however
this issue was dismissed by the agency on March 2, 2005, on the grounds
that complainant filed a grievance on this same issue on March 31, 2004.
See Report of Investigation (ROI), Ex. C2.
4 We note that the Commission has generally found it more appropriate
to relocate the alleged harasser, in such situations, than to relocate
the victim of alleged harassment.
5 The e-mails were sent to complainant between 2002 and 2005, attacking
him in his capacity as union president. ROI at Exhibit F22.
6 Unlike the emails that were contained in the record, the AJ noted
testimony that, she found credible, from the AGC and the Attorney-Advisor
from the Boston office that they have received emails referring to
complainant's race and religion.
7 We note that complainant has not identified any co-worker, outside
of his protected groups, who had comparable allegations of harassment
brought against him/her, and was treated more favorably (e.g., being
restricted to certain areas of the office).
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0120080468
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080468