0120113499
06-20-2012
Iman Raissi, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
Iman Raissi,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120113499
Hearing No. 480-2011-00052X
Agency No. P20100369
DECISION
On June 20, 2011, Complainant filed an appeal from the Agency's May 18, 2011, final decision (Decision) 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 deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's Decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Information Technology (IT) Specialist at the Agency's Federal Correctional Complex facility in Lompoc, California. On April 19, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Persian) and religion (Muslim) when:
1. From October 5, 2009 through February 16, 2010, Complainant was subjected to harassment from supervisors and coworkers, culminating in a forced reassignment from his IT Specialist position and a return to his previous position as a Correctional Officer.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The Decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Specifically, the Agency found that Complainant failed to show that most of the actions complained of were related to his religion or national origin, or that they were sufficiently severe or pervasive to constitute prohibited discrimination.
CONTENTIONS ON APPEAL
Complainant alleges that the affidavit from one of his coworkers shows that Complainant's coworkers in the IT department made comments about his religion and/or national origin, that Complainant was mistreated and belittled by his coworkers and that he was given tasks beyond his pay grade and training level. Complainant also maintains that the record contains no complaints against his work performance from colleagues whose computers he serviced but that the only complaints against his performance came from the supervisors and coworkers responsible for the harassment against him. Complainant next argues that the record contains inconsistent statements from management officials regarding whether or not Complainant's return to his Correctional Officer position was voluntary or coerced. Finally, Complainant argues that the Agency's Decision "confuses" the evidence that shows his supervisors and coworkers were aware of his national origin and religion with the evidence of their treatment of Complainant. The Agency did not submit a brief.
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, at 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").
The record does not indicate exactly when Complainant began working as an IT Specialist but Complainant alleges that he worked there for "almost one year and two weeks," Report of Investigation (ROI), Exhibit 8, p. 4, before he transferred to his current Correctional Officer position on or about December 7, 2009. Id. Complainant alleges that shortly after becoming an IT Specialist, the Acting Manager (AM: national origin and religion unknow ) began harassing him, asking Complainant if he "had any problem working with a Jewish person." id., and asking "me some political questions." Complainant maintains that AM overworked him and gave him menial tasks, including cleaning storage rooms, computers, disassembling the computers to see if they had all the parts, mopping and cleaning the floor, and carrying and moving heavy computers. Complainant said that he was only provided a dolly with a flat tire that was never fixed despite Complainant's repeated requests. See id., p. 6. Complainant next alleges that a new Manager (M: American, declined to state religion) joined the IT department in July 2009 and took over AM's position and that the harassment from AM and M continued. At this point AM was no longer the acting manager but was now a coworker at the same level as Complainant, but M told Complainant he was still required to follow AM's instructions, and AM would tell Complainant to "go to too many different places, doing so many different assignment [sic] when he was sitting in the office making himself coffee, or talking to his friends, or read[ing]." Id., p. 5.
Complainant maintains that on one occasion when his wife came to visit him at work, M told Complainant he was rude for not introducing her to Complainant's coworkers. M also asked inappropriate questions about Complainant's wife, asking if she was religious and if she prayed five times a day. In addition, Complainant contends, M would frequently yell at him. With regard to AM, Complainant averred that he set a fan to blow in Complainant's face and would not let Complainant move the fan or his desk. Id., p. 35. Complainant averred that his name tag disappeared and he believes AM stole it as a prank, and also that another occasion while he was away from his desk, "apparently somebody had dialed 2-2-2, which is like if your life is in danger, you have to dial 2-2-2. And somebody had dialed 2-2-2 from my extension, but I was [at another location talking to someone else] so it could not be me." Id., p. 36. After this incident, AM would call Complainant "triple deuce."
Complainant maintains that he complained about M's behavior to the Associate Warden (AW: Hispanic, no religion) but "nothing was done." Complainant also spoke to the Chief Psychologist (CP: national origin, religion, unknown) about his treatment at the hands of M and AM. CP then told the Warden (W:African American, Baptist) who then sent Complainant for additional computer training. See id., pp. 20-21. Complainant maintains that after his training he realized that the training he had received from AM and others had been incomplete. Complainant maintains that one day M called him into his office told him that "hiring you for an IT specialist position was a mistake. He told me that I was a waste of taxpayers' money. He told me that I didn't know much English and I didn't have much computer skills." M went on to show Complainant a stack of memoranda that detailed various alleged failings by Complainant and he told Complainant that he intended to use them to get Complainant fired unless Complainant agreed to be transferred back to his previous position as a Correctional Officer.
Complainant spoke to AW and told him of M's threats, but AW told him "we have been trying this but it's not working and I want - I think it's best for you to sign [the transfer request]. Your wife is pregnant now. You want to have a job. So it's best for you to sign this paper." Id., p. 12. Complainant contends that someone else wrote his transfer request to make it seem as if he had written it, and that he signed it under duress. On his last day in the IT department, M told AM that "we should have a going-away-party for [Complainant] and they started laughing very loud" until tears began running down AM's face. Id., p.29.
Complainant next contends that even after his transfer, M continued to harass him. One week after returning to his Correctional Officer position, M sent an email to Complainant, AW, and to Complainant's new supervisor, accusing him of stealing government property, specifically a credit card file-folder from the IT department that Complainant had previously been responsible for safeguarding. Complainant denied taking the item and was very worried for his job and his reputation, but a few days later M said that the item had been found in the IT department. Complainant believes that M faked the whole incident in order to embarrass Complainant and make him look bad to his coworkers.
In considering whether any of the above actions, whether individually or collectively, constitute harassment, the Commission notes that in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant's employment. See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Furthermore, in assessing whether the complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. � 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request No. 05970077 (March 13, 1997). However, as noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment." The Court noted that such conduct "must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and . . . that the victim in fact did perceive to be so." Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001).
Following a review of the record, we find that Complainant has not met his burden of establishing, by a preponderance of the evidence, that he was discriminated against as alleged. Specifically, Complainant has not shown that the actions complained of either involved or were based on his national origin or religion. While Complainant argues on appeal that the Agency's Decision "confuses" the evidence showing that AM and M were aware of his national origin and religion with the evidence of their mistreatment of Complainant, under our caselaw, Complainant does need to show that he was subjected to unwelcome verbal or physical conduct that both involved and was based on his national origin and/or religion. McCloud. In the present case, while Complainant describes behavior that was undoubtedly hostile and unpleasant, he has failed to show that such behavior was due to his protected bases and not due to some other reason. We note in this regard that none of the actions included derogatory slurs against his national origin or religion, or otherwise showed that the behavior was due to such factors. In addition a prison Captain (C: American, Christian) averred that, while:
I don't know that they treated [Complainant] professionally all the time. And when I say that, this has nothing to do with religion or national origin or anything like that. I believe it was because he was newer he got a lot of the workload assigned to him a lot and I see that happen to new people quite a bit, you know, regardless of anything other than them being lowest on seniority. So, I mean, I don't think that he really appreciated that, but again, 1 don't think it was anything more than the seniority.
ROI, Exhibit 18, p. 6.
C further averred that "they did the same thing to [Complainant's coworker] when he started" Id. In addition, a Human Resources Specialist (HR: American, Baptist) who once worked with AM, described him as a:
twit. . . .a very pushy individual so he thinks he's running something, okay? So he would assign tasks. When I was in the shop, he would assign tasks to people in the shop, okay? By default, the supervisor in charge at the time didn't' care, so basically [AM] ran the shop. . . . I got tired of the crap that was going on in that shop and I left the shop. I went and talked to the warden, I told her, look, I can't help these people. They are unhelpable. They're very petty and the control in the shop, there was no control. So before I would let my reputation be ruined by these numb nuts, I was not going to stay in the shop, I told her I would return back to my original shop. . . . all they can do is be combative with each other. So as far as any race-based kind of nonsense, I didn't see that, but as far as being stupid with each other, that I saw every day.
ROI, Exhibit 14, p. 5.
Furthermore M averred that he did not discriminate against Complainant based on his national origin or religion, and denied that he yelled at him or belittled him, but he also averred that Complainant did not perform at even a "minimally successful level" ROI, Exhibit 11. p. 4. With regard to Complainant's claims of having to lift heavy computers, M averred that "my staff do pick up computers and move them" but denied that Complainant was not provided a dolly to help move them. Id., p. 14. In addition, M denied threatening to fire Complainant and denied forcing him to transfer back to his old position. Id. With regard to the credit card folder, M denied that he accused Complainant of stealing it, but said that "the reason I was involving [Complainant] in that is because he was the credit card holder and I assumed that he would know where the credit card book was." Id., p. 10. The record contains the electronic mail exchange where M notified Complainant, AW, and C that the credit card file was missing. The emails do not indicate that M accused Complainant of stealing government property but instead merely state that the item is missing and ask Complainant if he knows where it is. See ROI, Exhibit 30, p. 37. M further provided other email and other exchanges between himself and Complainant that do not support Complainant's contention that M was insulting but rather reflect frustration on the part of M due to his perception of Complainant's work performance. See generally Exhibit 26. AM similarly denied discriminating against Complainant and provided a large number of memoranda or notes that indicated that Complainant had numerous performance problems. Exhibit 30.
The evidence of record is inconclusive and it is unclear whether Complainant's treatment was due to his national origin and/or religion, or to other factors like his performance, hazing of new employees in the IT department, or to the fact that M and AM were "twits" and "numb nuts." However the burden of proof rests with Complainant and we find that Complainant has not met his burden of showing, by a preponderance of the evidence, that he was subjected to harassment based on his national origin and/or his religion.
With regard to any claim of disparate treatment when Complainant was reassigned, the Agency articulated a legitimate nondiscriminatory reason for the transfer when M and AW both averred that Complainant requested the transfer. While Complainant denies that he voluntarily requested the transfer and maintains that he was coerced to sign the request, he has not met his burden of showing that the Agency's articulated reason is a pretext for discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not met his burden of establishing that discrimination occurred. We therefore AFFIRM the Decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 (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 (Z0610)
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
June 20, 2012
__________________
Date
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0120113499
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113499