0120142064
09-26-2016
Leif S.,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
Leif S.,1
Complainant,
v.
Eric K. Fanning,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120142064
Hearing No. 470-2012-00077X
Agency No. ARDETROIT11MAR01137
DECISION
On May 12, 2014, Complainant filed an appeal from the Agency's March 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 Equal Employment Opportunity Commission (EEOC or 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 a Police Officer at the Agency's Joint Systems Manufacturing Center in Lima, Ohio.
On March 17, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Hispanic)2, color (Brown), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. he was subjected to a hostile work environment during the period of April 2010 through March 23, 2011; and
2. he was placed on administrative leave on February 16, 2011, and terminated from his position effective March 23, 2011.
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. The AJ held a hearing on November 27-29, 2012.
On February 3, 2014, the AJ issued a decision concluding that the evidence established that Complainant was subjected to a discriminatory hostile work environment based on his national origin and color. Specifically, the AJ determined that another police officer (the "Lieutenant") consistently and repeatedly subjected Complainant to derogatory and discriminatory comments based on his protected bases. The AJ stated that the record is replete with evidence that the Lieutenant subjected Complainant to a hostile work environment starting in April 2010, when Complainant began working on the same shift as the Lieutenant. For example, when Complainant began working, the Lieutenant announced, "Now, we have a Beaner on our shift." This comment was followed by other names such as "Spick," "Spicandian" (to reference Complainant's Canadian grandfather); "Wetback," "border jumper" and "Carabeaner." The Lieutenant would introduce Complainant to new employees by these names, as well as using them with management and other Agency employees while on training. He was told several times by Complainant and coworkers about the inappropriate nature of the name calling. However, it persisted.
There was also evidence that the Lieutenant made reference to Complainant's "kind" or the "brown kind" while making threats to Complainant. When the Lieutenant's threats were raised at a work meeting in August 2010, the Lieutenant stated to the room, "if anyone in this room ever, ever goes above my head again or if you have an issue with me, if you think...you're going to fuck with me or fuck with my career or fuck my personal life, or fuck my paycheck...I will fuck you back. If you have a fucking problem with me, you come to me."
Complainant's other coworkers testified in support of Complainant. They indicated additional events such as one time they walked into a local Mexican restaurant and the Lieutenant called it "[Complainant's] people restaurant" and "we'll have him translate the menu for us." They all confirmed the use of derogatory terms for Complainant by the Lieutenant. The AJ noted that Complainant made the Agency aware of the situation, but the problems persisted. Complainant also argued that the Lieutenant was the Lead Police Officer and had supervisory authority over him.
The AJ determined that Complainant clearly had established that the Lieutenant created a hostile work environment for him based on his national origin and color. The AJ also noted that the Agency treated the Lieutenant as a supervisor and that he was in charge of the employees. However, the AJ noted that the status of the Lieutenant as a supervisor was irrelevant. The AJ held that the record showed that the Lieutenant engaged in his discriminatory conduct in an open manner such that Agency management was clearly aware of it and took no effective action to address the problem. As such, the AJ found that the Agency was liable for the harassment Complainant experienced based on his color and national origin.
The AJ then turned to the issue of whether Complainant was subjected to disparate treatment when he was placed on administrative leave and removed from his position. The AJ noted that Complainant had a history of being counseled, orally and in writing, for attendance issues. This culminated when, on February 16, 2011, Complainant was issued a Sick Abuse Letter placing him on administrative leave. The letter indicated that Complainant had requested sick leave on February 12, 2011. However, he was then seen at 11:00 pm by the Chief at a night club. Based on the Chief's sighting of Complainant at a night club while he was on sick leave the same day, Complainant was issued the memorandum for the record for abuse of sick leave and the Agency determined that it would place Complainant on administrative leave pending disciplinary action. Management then issued Complainant a notice of removal on March 23, 2011.
The AJ found that the Agency provided legitimate, nondiscriminatory reasons for its actions. The AJ determined that the record showed that Complainant had a long history of arriving at work late and these issues culminated on a day when Complainant was taking sick leave and then seen by the Chief at a night club. The AJ held that the Agency demonstrated that Complainant's action constituted an abuse of sick leave. The AJ then found that Complainant failed to establish that the Agency's reasons constituted pretext for discrimination. Complainant did not dispute the fact that he took sick leave and went to a night club the same night. Complainant argued that the matter should have been investigated. However, the AJ found that the events occurred because of Complainant was caught partying when he was on sick leave. As such, the AJ concluded that the Agency's actions flowed directly from Complainant's actions and was not discriminatory.
The AJ then awarded Complainant $ 35,000 in compensatory damages based on the harassment he suffered by the Lieutenant, as well as $31,482 in attorney fees and $236.25 in legal costs. The AJ also ordered the Agency to provide training to the Lieutenant and management regarding their responsibilities regarding hostile work environment.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant proved that the Agency subjected him to harassment based on color and national origin as alleged. The Agency also accepted the AJ's award of remedies including compensatory damages, attorney's fees and costs, training and posting of notice of the finding of discrimination.
Complainant appealed. Complainant asserted that the AJ erred in finding no discrimination as to the placement on administrative leave and the termination decision. Complainant argued that his attendance issues were related to, and the result of, the harassment he suffered. Further, he contends that the termination was dependent on the history of alleged counseling memoranda concerning his attendance, including that issued by the Lieutenant. As such, Complainant argued that the AJ should have found that the Agency subjected him to discrimination with respect to all of his claims.
ANALYSIS AND FINDINGS
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, at � VI.B. (Aug. 5, 2015).
The only issue before the Commission is whether the AJ erred in finding no discrimination regarding claim (2). In claim (2), Complainant argued that the events were connected to the ongoing harassment created by the Lieutenant. Upon review of the record and the AJ's findings of credibility and of fact, we determine that Complainant has not proven, by a preponderance of the evidence, that his issues of attendance and dependability were directly connected to the hostile work environment created by the Lieutenant. The AJ noted that the comments made about Complainant's past attendance issues were factually supported and that the memoranda and appraisals including positive and negative comments strictly related to his work performance. As such, we conclude that the AJ's finding that these events were outside of Complainant's claim of harassment is supported by the record.
As such, we review claim (2) as a claim of disparate treatment. A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the case at hand, the record supports the AJ's determination that the Agency provided legitimate, nondiscriminatory reasons for its action. The Agency demonstrated that Complainant had a history of leave issues which started as early as May 2010 and continued to February 2011. At that time on February 12, 2011, Complainant had taken sick leave for the day, but was later seen by the Chief at a night club. Based on the Complainant's actions, the Agency placed him on administrative leave and subsequently issued his removal. We then turn to Complainant to establish that the Agency's reasons were pretext for discrimination based on national origin, color and/or prior EEO activity. While we recognize that some of the counseling memoranda concerning Complainant's past attendance problems were issued by the Lieutenant, Complainant has not shown that his attendance was not fairly represented. We further note that we have already affirmed the AJ's conclusion that Complainant's attendance problems were not proximately caused by the Lieutenant's harassment. In sum, we find that the AJ correctly held that Complainant failed to meet his burden.
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 action implementing the AJ's decision.
ORDER (C0610)
The Agency is ordered, to the extent it has done so already, to take the following remedial action:
1. The Agency shall pay Complainant $ 35,000.00 in compensatory damages.
2. The Agency shall pay Complainant $ 31,482.75 for attorney fees and $ 236.25 in legal costs.
3. The Agency is directed to conduct training for the Lieutenant, who has been found to have created a hostile work environment, and those management officials who failed to address the hostile work environment created by the Lieutenant. The Agency shall address these employees' responsibilities with respect to eliminating harassment in the workplace.
4. The Agency shall consider taking disciplinary action against the Lieutenant identified as being responsible for the discriminatory harassment perpetrated against Complainant. The Agency shall report its decision. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline.
5. To the extent the Agency has not done so, it shall complete all of the above actions within ninety (90) calendar days from the date on which the decision becomes final.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.
POSTING ORDER (G0914)
The Agency is ordered to post at its Joint Systems Manufacturing Center in Lima, Ohio, copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 26, 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.
2 Although Complainant also alleged discrimination on the basis of race (Hispanic), the Commission notes that it considers the term "Hispanic" to be a national origin rather than a racial group.
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