Emanuel W.,1 Complainant,v.Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.Download PDFEqual Employment Opportunity CommissionSep 1, 20160120141953 (E.E.O.C. Sep. 1, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Emanuel W.,1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 0120141953 Hearing No. 530-2009-00277X Agency No. BOP-2008-0773 DECISION The Commission accepts Complainant’s appeal from the Agency’s April 1, 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 Utility Systems Repair Operator (Powerhouse Operator) Foreman at the Agency’s Federal Correctional Institution in Fairton, New Jersey. The managers at the facility had a standing instruction to employees to only park in the staff parking lot, but managers occasionally had to remind employees to move their cars. On one occasion in March 2008, Complainant refused his manager’s instruction to move his car. As a result, management initiated an investigation into potential misconduct by Complainant. The record does not indicate whether Complainant received any discipline following the investigation. 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. 0120141953 2 In September 2008, the Facilities Manager (M1) called Complainant and informed him that his morning shift was being changed to the day shift for one day on September 4, 2008. The one- time schedule change was needed to facilitate interviewing Complainant as part of the investigation into the parking incident. Complainant told M1 that he had plans that day, and that he would not accept the schedule change for that day. M1 then gave Complainant a direct order for the schedule change. Complainant responded by saying “what don’t you understand about this conversation?” Complainant then hung up on M1 and ignored M1’s calls later that day. Complainant arrived at his regular shift time on September 4, 2008. Around September 8, 2008, M1 issued a memorandum to all Powerhouse Operators informing them that their regular scheduled day off, Fridays, would be changed to Mondays in the next few months. This change was due to the frequent use of Operators from the Maintenance Department to cover shifts for the Facilities Department on Fridays. In addition, around this time, the 2008 presidential primaries were being held. Complainant stated that everyone knew he supported candidate Barack Obama and as a result, he was subjected to jokes. For example, when candidate Obama fell in the polls, his co-workers posted newspaper articles about him on his clipboard or locker or when candidate Hillary Clinton was doing well, his co-workers placed newspaper articles about her on his locker. Additionally, Complainant claimed that his co-workers joked that Complainant’s list of priorities included supporting candidate Obama, collecting his paycheck, and leaving work early. Further, someone placed a fake flyer at Complainant’s work area that appeared to mock Complainant’s issues with parking at work. Complainant claimed that his immediate supervisor (S1) failed to take his complaints about the postings seriously. Complainant alleged that on approximately four occasions in 2008, he was relieved late from his shift. Complainant claimed that he was never informed when his relief Operator would be late. Complainant was paid on all occasions he worked overtime. On one occasion, Complainant was looking for a tool, but could not find it. Complainant later learned that another employee had taken the tool home, but failed to leave a note. While it was common practice for employees to take tools home for personal use as long as they were timely returned, the Associate Warden instructed M1 to end the practice. On November 18, 2008, Complainant filed a formal complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the basis of race (African-American) as evidenced by multiple incidents including, inter alia, being given direct orders in a demeaning tone; being told distasteful jokes with racial overtones; having offensive materials posted in his mailbox, on clipboards, and in other offices; having his personal information discussed with other staff; being lied to by Executive Staff; having his shift changed; not being relieved when his shift ended; being relieved from his shift late; a work schedule change; an increased work load; and being banned from using tools at the Powerhouse after hours. 0120141953 3 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 February 20, 2014. In the decision, the AJ determined that the alleged conduct was insufficiently severe or pervasive to establish a hostile work environment. Further, the AJ found that Complainant failed to show that the alleged incidents were based on his race. More specifically, Complainant was not singled out by managers for parking violations. Managers occasionally reminded all employees to move their cars whenever they were not parked in the employee lot. On one particular day, Complainant refused to move his vehicle following an order from the Associate Warden to do so. As a result, management initiated an investigation into Complainant’s failure to move his car. Regarding being asked to change his morning shift to the day shift, the AJ noted that Complainant refused the order and did not work on a different shift. Further, Complainant was asked to change his shift for one day to facilitate an interview for the investigation into his failure to move his car. As to his claim that his scheduled day off was changed, the AJ found that the record is undisputed that all Powerhouse Operators had their day off changed from Friday to Monday. Management explained that there were too many instances of paying overtime and of using employees from other departments to fill their own Powerhouse Department. Likewise, all Powerhouse Operators were old that they could no longer take tools home for personal use. Finally, as to the postings and jokes, the AJ determined that there was no dispute that Complainant’s managers did not engage in the jokes or post the flyers and newspaper clippings on or near Complainant’s lockers. The AJ further noted that there was no evidence that the newspaper clippings and jokes were race-related. The AJ found that the record showed that Complainant’s co-workers (specifically CW1 and CW2) joked with Complainant and posted flyers or articles related to Complainant’s problems with parking, his conflicts with CW1, and his alleged desire to leave work early or being interested only in his paycheck. For example, one clipping alluded to Complainant and CW1 making up after a dispute and another teased Complainant that perhaps candidate Obama and Oprah Winfrey would come to their Powerhouse and inaugurate a special parking spot for Complainant. The AJ determined that the record showed that these types of jokes were exchanged by everyone. CW1 confirmed that he received jokes and pictures on his locker about him being bald and overweight. The AJ determined that the record was clear that any political discussions occurred only amongst the staff. Complainant claimed that he complained to S1 about something CW1 said, but S1 stated he only recalled one occasion that Complainant complained and that when he inquired about the discussion, the employees simply told him that they were discussing the 0120141953 4 presidential election. Complainant did not elaborate or present any other evidence that anyone made any race-related comments. The AJ concluded that Complainant failed to show that management’s reasons for its actions were pretextual. As a result, the AJ found that Complainant had not been subjected to discrimination or a hostile work environment as alleged. The Agency subsequently issued a final order fully implementing the AJ’s decision. Complainant filed the instant appeal without submitting any arguments or contentions in support. 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. 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 protected class. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, Complainant failed to show that the Agency's actions were based on discriminatory animus. For example, with respect to the parking incident, the Associate Warden stated that the facility had experienced problems with staff not parking in the designated staff parking area. ROI, Ex. 11, at 6. On one occasion, the Associate Warden asked Complainant to move his car that was parked improperly, and Complainant refused to comply with his direct order. Id. at 6-7. Management subsequently initiated an investigation 0120141953 5 into Complainant’s refusal to comply with the direct order. Id. at 7. Regarding the request to change his shift, M1 stated that he called Complainant to ask him to change shifts on September 4, 2008, to facilitate interviewing him for the investigation into his refusal to move his car. ROI, Ex. 12, at 16. Complainant refused to change his schedule, ignored M1’s calls, and came in during his regular shift. Id. at 16-17. As to Complainant’s claim regarding the schedule change, the Associate Warden stated that he decided to change the scheduled days off for all Powerhouse Operators from Friday to Monday based on the Department’s manpower needs and overtime usage. ROI, Ex. 11, at 3. During the day watch, management had to find staff to cover the Powerhouse using Facilities department staff members who were trained. Id. at 4. The Associate Warden confirmed that by changing the Powerhouse Operators’ scheduled days off, management was able to reduce the use of other staff to cover the Powerhouse and overtime was reduced. Id. at 3-5. Regarding management’s ban on employees’ personal use of tools, M1 acknowledged that he allowed employees to take tools home until he learned that the practice was against Agency policy. ROI, Ex. 12, at 9. M1 consulted with the Associate Warden after one of Complainant’s tools went missing, and he subsequently informed the entire Powerhouse Department that employees could no longer take tools home for their own personal use. Id. at 10. In regard to not being relieved from his shift on time, M1 stated that he recalled two occasions where Complainant was relieved late, but he was properly paid overtime. ROI, Ex. 12, at 4-5. Further, S1 explained that normally Operators are covered, but occasionally the Powerhouse experienced a last-minute call-in or lack of immediate coverage which may have resulted in Complainant being relieved 10 or 15 minutes late. ROI, Ex. 13, at 9-10 Finally, with respect to the articles and jokes posted near Complainant’s locker, the record reveals that employees in the Powerhouse Department joked around with each other. ROI, Ex. 14, at 6; ROI, Ex. 15, at 3. S1 confirmed that Complainant only mentioned to him on one occasion that he did not like CW1’s comments. ROI, Ex. 13, at 5. S1 looked into the situation and discovered that CW1 and Complainant had been discussing the presidential election. Id. at 5-6. S1 instructed the employees to watch what they say. Id. at 6. S1 noted that many of the employees had private jokes of which he had no knowledge. Id. at 8. Construing the evidence in the light most favorable to Complainant, the Commission agrees with the AJ that Complainant has not shown he was subjected to a hostile work environment. The record reflects that the alleged incidents were more likely the result of routine supervision, personality conflicts, and general workplace disputes and tribulations. The Commission notes that Title VII is not a civility code. Rather, it forbids “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Moreover, the Commission finds that Complainant has not proffered any evidence from which a reasonable fact finder could conclude that the Agency's explanation was a pretext for discrimination. As a result, the Commission finds no basis to 0120141953 6 disturb the AJ's summary judgment decision finding that Complainant was not subjected to discrimination or a hostile work environment as alleged. 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. 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). 0120141953 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 September 1, 2016 Date Copy with citationCopy as parenthetical citation