0120161046
04-24-2018
Odell H.,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Odell H.,1
Complainant,
v.
Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.
Appeal No. 0120161046
Hearing No. 510-2013-00212X
Agency No. HS-ICE-22062-2012
DECISION
On January 20, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's December 18, 2015, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
Whether Complainant established that the Agency subjected him to hostile work environment harassment on the bases of national origin (Italian American), age (52), and reprisal for prior protected EEO activity as the result of the conduct of his first level supervisor from January 2011 to April 2012.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory Special Agent, GS-1811-14, Group Supervisor (GS) at the Agency's Homeland Security Investigations (HSI) facility facility in West Palm Beach, Florida.
On April 10, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Italian American), age (52), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964
the Age Discrimination in Employment Act of 1967 when:
1. In the first week of January 2011, Complainant's supervisor and a Group Supervisor (GS) yelled at Complainant in front of subordinates and co-workers.
2. In July 2011, Complainant's supervisor cursed at him.
3. In August 2011, Complainant's supervisor asked him for a vehicle log and then loudly asked an investigative aide the same question, implying that he did not believe Complainant's response.
4. On October 20, 2011, Complainant's supervisor suggested that Complainant should lower the performance scores of the only three Italian American Special Agents (SAs) in the office.
5. On December 14, 2011, Complainant's supervisor gave an assignment directly to Complainant's subordinate.
6. On December 17, 2011, Complainant's supervisor repeatedly yelled at Complainant that he was the boss and demanded that Complainant repeat his statement.
7. On December 20, 2011, a GS told an SA that Complainant's supervisor had a problem with Complainant and another GS, despite Complainant's having received no indication that there were any problems with his performance.
8. On January 4, 2012, Complainant's supervisor gave him an assignment for his subordinate, a new SA; even though Complainant believed that the subordinate was overwhelmed with an assignment from Complainant.
9. On January 11, 2012, Complainant's supervisor made comments to him and another Agent about wearing red shirts, implying that Italians spill pizza sauce on their clothes.
10. On January 13, 2012, Complainant's supervisor did not tell him that he had granted 59 minutes of leave to an employee under Complainant's supervision.
11. On January 19, 2012, Complainant's supervisor directly tasked Complainant's subordinate to text him about opening arguments in an ongoing federal trial.
12. On February 1, 2012, Complainant's supervisor cut Complainant off in a conversation with another Agency to tell Complainant how a task should be done.
13. On February 1, 2012, Complainant learned that his supervisor directly tasked one of Complainant's Agents to report what was happening in federal court.
14. On February 1, 2012, during a conversation about vehicle assignment, Complainant's supervisor angrily asked, "What did you say?" and exclaimed repeatedly, "That's an order."
15. On February 2, 2012, Complainant's supervisor made Complainant and others in the office anxious by uncharacteristically wearing his firearm on his belt.
16. On March 23, 2012, Complainant's supervisor asked Complainant's subordinate to investigate damage to Complainant's cellular telephone.
17. On April 4, 2012, Complainant's supervisor checked to see if the shredder Complainant was using was full after Complainant had informed him that Complainant was one of the few people in the office who emptied the shredder.
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). 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.
The investigative record shows that Complainant's supervisor was the Resident Agent in Charge, or RAC. After a narcotics vessel interdiction in December 2010, RAC met with Complainant, another Group Supervisor (GS2), and other law enforcement officers in January 2011, to assess their performance during the December action. Conflicting testimony was presented as to whether RAC berated or yelled at Complainant. One of Complainant's subordinates (W) stated in his affidavit that RAC "appeared very angry with [Complainant's] position concerning our group's response and performance," and indicated that he "felt very uncomfortable with the manner in which [Complainant] was addressed, considering the confrontation took place in front of" other law enforcement officers outside of the HIS work group. GS2, on the other hand, testified that the interaction was totally professional, RAC never yelled, but "offered constructive criticism because there was [sic] obvious mistakes made."
With respect to the performance appraisal scores, RAC testified that after one of the Group Supervisors gave scores that were almost perfect he decided to create a numeric system that would bring the scores of all three of his supervisory groups more in line and objective. In that regard, he stated that "[t]he purpose was to attempt to rate all personnel in the office by a similar standard to ensure that the appraisals or ratings were fair and consistent for all." Accordingly, RAC informed his Group Supervisors that they needed to make some adjustments in their ratings. Thereafter, Complainant took great issue with this directive, and testified that the three ratings in his group that S1 indicated should be lowered, belonged to his three special agents of Italian descent.
In a January 2012 interaction, Complainant testified that he and an Italian American Special Agent (SA1) under his charge happened to have on red shirts. Upon entering Complainant's office, RAC stated that he "did not get the red shirt memo," and further inferred that the red shirts were "to hide the sauce." Complainant and SA1 took the comment to be a derogatory reference to Italian Americans. While RAC's testimony attributed the "hide the sauce" comment to Complainant, SA1 provided corroborating testimony in support of Complainant.
Thereafter, in February 2012, another confrontation ensued between Complainant and RAC concerning a vehicle assignment. The Issue involved a delay in the delivery of a newly assigned vehicle and several Agents were waiting after business hours in order to exchange vehicles. One of the Special Agents (SA2), testified that he was a direct witness to the interaction. SA2 stated that RAC had concluded a telephone call and appeared to be gathering his belongings to leave, when Complainant stepped in front of him to discuss the fact that the agent bringing the new vehicle would be delayed. RAC then told Complainant that the waiting agents should go ahead drive their current vehicles home and that the exchange would happen the next morning. When Complainant pressed RAC about the agents whom had been waiting, RAC reiterated that the exchange could take place the next day.
As this interaction continued, RAC eventually informed Complainant that he was becoming insubordinate, and both parties entered RAC's office, shut the door and continued the heated discussion. SA2 indicated "[i]t is the opinion of this Affiant that [Complainant] instigated this incident by challenging the RAC's decision, escalating his voice and being insubordinate." SA2 further offered "I have observed [Complainant] verbally challenge or question the RAC and other GS decisions on numerous occasions."
In March 2012, Complainant informed the Mission Support Specialist (MSS) that he had dropped his Blackberry phone device while running. It fell in a swimming pool and even after it dried out, it no longer worked. MSS was asked by RAC how often Complainant needed his Blackberry replaced. She responded it had been replaced a month earlier and that Complainant had been issued 5 of the devices in the past two years. While several of the replacements appear to have been from equipment malfunction, two of the replacements resulted from the device dropping in a pool.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, inter alia, that RAC's alleged "hide the sauce" comment is direct evidence of discriminatory animus based on national origin and represents a pattern of abusive behavior towards Complainant and other Italian American office staff. Complainant further avers that the alleged discriminatory incidents, taken as a whole, constitute a single act of hostile work environment harassment. With respect to reprisal, Complainant contends that his claim is supported by RAC's alleged statement that his (RAC's) chances for a promotion were jeopardized by several EEO complaints that had previously been filed against him.
In general, the Agency contends that the Complainant failed to show that he was subjected to discriminatory animus, failed to show that the Agency's actions were sufficiently severe or pervasive to support a hostile environment claim and made no showing of being subjected to harassment based on any protected basis or retaliation.
STANDARD OF REVIEW
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 (EEO MD-110), at 9-16 (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").
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").
Hostile Work Environment Harassment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion, or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has stated that: "Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Tide VII's purview." Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile environment harassment, 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
At the outset, we find that Complainant failed to show that the alleged harassment complained of was based on age or reprisal. He offers no evidence of discriminatory bias based on age. With respect to his reprisal claim, he offers only a statement allegedly made by RAC that EEO complaints have affected his (RAC's) opportunity for promotion. However, Complainant fails to offer evidence that he, in fact, engaged in EEO activity prior to the complaint filed concerning the instant matter. While Complainant submits that one of his subordinates, W, also witnessed the statement by RAC, W made no mention of the statement in his testimonial affidavit.
We note that Complainant originally requested a hearing before an AJ, but withdrew that request. Had a hearing been conducted, Complainant would have had the opportunity to cross-examine witnesses and the AJ could have made credibility determinations based on the witness testimony. See generally EEO MD-110, at Ch. 7. As the hearing was not held, we do not have the benefit of an AJ's credibility determinations after a hearing; therefore, we can only evaluate the facts based on the weight of the evidence presented to us. Based on the record before us, we are not persuaded that Complainant has shown that RAC's alleged actions were retaliatory.
We further find no merit in Complainant's national origin based claims. To the extent that Complainant claims that RAC's actions, in their entirety, constituted hostile workplace harassment, Complainant has not shown that his workplace was permeated with discriminatory intimidation, ridicule, and insult sufficiently severe or pervasive to alter the conditions of his employment. Meritor Savings Bank v. Vinson, 477 U.S. 57, 65, 67 (1986). The Commission recognizes that not every unpleasant or undesirable action which occurs in the workplace constitutes an EEO violation. See Shealey v. EEOC, EEOC Appeal No. 0120070356 (Apr. 18, 2011).
Although Complainant found RAC's alleged "hide the sauce" comment offensive, Complainant failed to prove that RAC made multiple comments, which permeated the workplace and that would sufficiently rise to a severe or pervasive level to create a hostile work environment. Additionally, Complainant failed to show that RAC's directive on performance appraisals was based on the fact that it affected his staff members of Italian descent.
It is clear from the investigative record that Complainant and RAC did not get along. For instance, RAC's admonishment of Complainant in front of subordinates and outside law enforcement officers certainly did not promote a professional relationship between RAC and Complainant. Similarly, testimony was presented that Complainant was a strong proponent of the chain of command and believed that RAC regularly circumvented his authority by directly managing personnel under Complainant's charge, instead of going through Complainant. We find that while, his supervisor's managerial style may not have been to Complainant's liking, there is no persuasive showing that RAC's actions were based on discriminatory animus.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant did not establish discrimination or harassment on the bases of national origin, age or reprisal when he was allegedly subjected to a hostile work environment. Accordingly, we AFFIRM the Agency's Final Decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
_4/24/18_________________
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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0120161046