0120143176
09-15-2016
Jules H.,1 Complainant, v. Eric K. Fanning, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jules H.,1
Complainant,
v.
Eric K. Fanning,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120143176
Agency No. ARREDSTON12JUL02976
DECISION
On September 11, 2014, Complainant filed an appeal from the Agency's September 2, 2014, final 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).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Environmental Protection Specialist at the Agency's Material Command facility in Redstone Arsenal, Alabama.
On September 12, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of sex (male) when he was subjected to a hostile work environment by his female supervisor (Supervisor). In support of his claim of harassment, Complainant alleged that the following events occurred:
1. On July 30, 2012, he was verbally assaulted by the Supervisor when she allegedly used offensive language including "fuck" and phrases based off that word. She also threatened to terminate his employment. Complainant alleges that the Supervisor regularly yells and screams and is verbally abusive to subordinates in front of colleagues.
2. On May 17, June 13 and 18, and July 19, 2012, he was harassed by the Supervisor for requesting personal leave.
3. On March 19 and 26, April 4, and 11, 2012, he was required to participate in weekly activity meetings.
4. On March 26, May 17, and July 2, 2012, he was held to different requirements for submitting travel requests.
5. On July 13, 2012, in regard to an issue paper, he was held to an unrealistic deadline and required to work overtime without compensation.
6. O June 26, 2012, in regard to an Executive Summary work assignment, he was held to an unrealistic deadline.
7. On May 21, 2012, in regard to a PowerPoint slide, he was required to make corrections by 11:00.
8. On May 17, 2012, in regard to a pest management funding support question/clarification request, the Supervisor stated that the organization does not support pest management.
9. On April 2, 2012, in regard to a workshop, the Supervisor cancelled Complainant's guest speaker because he was a contractor, while other contractors were permitted as guest speakers.
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 Equal Employment Opportunity Commission 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 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. The Agency determined that, overall, Complainant failed to establish that he was subjected to the alleged events due to his sex.
The Agency noted that the Supervisor provided legitimate, nondiscriminatory reasons for alleged the events. As to event (9), the Supervisor indicated that she had been given guidance that no contractors would participate in the conference but later realized that she could not exclude all contractors. As for the contractor at issue, the Supervisor noted that it did not feel appropriate for the contractor to speak about financial management when they are not allowed to make financial decisions or manage money for the Agency. As to the weekly meetings raised in event (3), the Supervisor stated that Complainant asked for a legal opinion on an issue on which she had substantial information and experience. Rather than asking the Supervisor, Complainant asked the opinion of the legal office. The Supervisor determined that Complainant did not understand the Agency's way of doing things for program areas and scheduled one-on-one sessions to discuss things Complainant was working on to see if he had any issues. As for event (4), the Supervisor noted that due to internal operating procedures, releasing money for travel became tight for the third quarter for the budget year. She indicated that travel cost reimbursements under a different fund were not processed the same way. Based on Complainant's travel, she instructed Complainant to wait to submit his request when she received information from a Resource Management Directorate. The Agency noted that as to event (8) and pest management, the Supervisor explained that the Agency's policy does not provide them money for pest management. In response to Complainant's leave requests in incident (2), the Supervisor averred that the Agency has a liberal "Administrative Leave Policy" and wanted to determine if he may be able to use administrative leave and not annual leave. She also noted that she did not deny Complainant's leave and merely asked for clarification.
As to the slides alleged in event (7), Complainant indicated that he was told at 9:00 am by the Supervisor that many of the slides were missing and she was required him to make revisions by 11:00 am. He believed that the guidance she provided at the last minute was different from the guidance she provided earlier. The Supervisor noted that these slides were needed for a high level briefing and the Second Line Supervisor was not happy with the material. As such, she needed Complainant to make the changes in advance of the meeting. Complainant stated in event (6) that he was told 15 minutes before the end of the day that the Supervisor needed an executive summary report before close of the business day. She stated in response that the summary was needed to be submitted by a certain time and that the individuals receiving the summary were still in the office later in the evening. As to the issue paper in event (5), the Supervisor indicated that Complainant was issued assignments and the Second Line Supervisor kept asking for the issue paper assigned to Complainant. Due to the inquiries by leadership, she pushed Complainant to complete the assignment.
Finally, as to the event (1), Complainant asserted that the Supervisor called him a "fucking moron" and used expletives during conversations. The Supervisor admitted that she had lost her temper and yelled and cursed at him, but denied it was due to his sex. The Agency found that the Supervisor's behavior was inappropriate, but concluded that there was no evidence it was based on Complainant's gender.
This appeal followed.
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. (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").
It is well-settled that harassment based on an individual's sex is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) he belongs to the statutorily protected classes; (2) he was subjected to unwelcome conduct related to his membership in that class y; (3) the harassment complained of was based on sex; (4) the harassment had the purpose or effect of unreasonably interfering with his 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 Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
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 a protected basis, in this case, his sex. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself.
Upon review of the record, we find that Complainant has not met his evidentiary burden of proving that the alleged events occurred because of his sex. The Supervisor provided her non-discriminatory reasoning for the alleged events. She also noted her frustrations and concerns with Complainant. Two of Complainant's co-workers were interviewed during the Agency's investigation. They stated that they believed that women were treated better in the workplace. One indicated that females generally were treated "more delicately." However, they failed to provide specific examples to bolster their assertions. As noted by the Agency, the Supervisor did behave in an inappropriate manner with regard to her use of rough language. However, Complainant has failed to show that the alleged events occurred because of his sex. Therefore, based on the totality of the evidence in the record and our review, we find that Complainant has not established his claim of sex-based harassment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision finding no discrimination.
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.
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 15, 2016
__________________
Date
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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