0120170572
10-03-2018
Ralph B.,1 Complainant, v. Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ralph B.,1
Complainant,
v.
Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120170572
Hearing No. 410-2016-00074X
Agency No. 2015-26279-FAA-03
DECISION
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 October 24, 2016, final decision (FAD) 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. For the following reasons, we AFFIRM the Agency's finding that Complainant did not demonstrate that he was subjected to discrimination and/or a hostile work environment.
ISSUE PRESENTED
The issue presented in this case is whether Complainant was discriminated against based on his sex and in reprisal for his prior protected activity, when since approximately August 24, 2014, he was subjected to hostile work environment/harassment in the form of adverse treatment in work assignments, communication, and an attitude of indifference to his concerns. Said actions, culminated in the termination of his employment, effective April 13, 2015, during his probationary period.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Equal Employment Opportunity Specialist at the Agency's FAA Southern Regional Office in College Park, Georgia.
Complainant indicated that in April 2014, he had a casual conversation with a coworker wherein he shared his frustrations with the way the office was managed, and his belief that he was being sexually harassed by his supervisor (S1). He claimed the coworker told him that an employee who worked in New York, was the "type of girl would be perfect to hook up with (have an affair) because she doesn't say much." Complainant "took it as a joke" and "did not feel a responsibility to report these comments. He stated that he would have reported unacceptable comments, but he did not consider this comment reportable.
Complainant maintained that his supervisor learned of this conversation in an Accountability Board investigative report. Thereafter, because of the comment about the coworker in New York, Complainant claimed that S1 began to retaliate against him. Complainant described himself as tall, well-dressed, and professional. He maintained that S1 choose to terminate him because he did not respond to her advances. Complainant explained that he first became concerned about a hostile work environment/harassment when a coworker told him that S1 had hired him because he was her type. Complainant indicated that it was common knowledge that S1 used her power to seduce men and had personal "activities" with employees. As an example of S1's behavior toward Complainant, he indicated that during a staff meeting in December 2014, she came up behind him, put her hands on his shoulders, squeezed, and caressed them, and made comments about her prowess, age, and vitality.
Complainant indicated that S1 also retaliated against him because he raised concerns that the office was not following procedural guidelines when it handled EEO complaints and failed to maintain an affirmative hiring plan. Complainant described the office as chaotic and dysfunctional, due to S1's moody management style. He maintained that he was never made to feel a part of the team. For example, S1 had long conversations with another employee when she arrived in the morning but for him it was just a brief greeting. She also publicly complimented other employees but did not do the same for him. Complainant maintained that S1 also accused him of using profanity and discussing his salary, which Complainant denied. He also denied that he stated that he would not have reported the comment made by his coworker about the coworker in New York to management. Complainant indicated that he had behaved with modesty, professionalism and proper comportment on the job.
On August 7, 2015, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of sex (male) and in reprisal for prior protected EEO activity when, since approximately August 24, 2014, he was subjected to hostile work environment/harassment in the form of adverse treatment in work assignments, communication, and an attitude of indifference to his concerns, which culminated in the termination of his employment, effective April 13, 2015, during his probationary period.
The Agency issued a FAD which found that Complainant did not demonstrate that he was subjected to discrimination/harassment as alleged. Specifically, regarding the basis of sex, the Agency found that Complainant failed to show that he was subjected to unwelcome conduct based on his membership in his protected group. Complainant failed to offer any corroborating evidence that these incidents took place, other than his bare assertions; and Complainant never reported inappropriate behavior, when it allegedly happened.
Further, with regard to Complainant's reprisal argument, the Agency found that Complainant did not show that even when considering all of his allegations regarding how he was retaliated against, i.e., not being sent on business trips, not having long conversations with S1, and not being given accolades, these things were not severe or pervasive enough to establish a hostile work environment. The Agency explained that Complainant was terminated during his probationary period because he failed to follow instructions, continued talking about things that he had been instructed not to talk about, and failed to recognize that the comment about the New York employee was inappropriate and that he should have reported it. Management maintained that because Complainant showed that he was not able to work within the constraints of the office environment, he was terminated during his probationary period. The Agency maintained that discriminatory animus played no part in the decision to terminate him.
CONTENTIONS ON APPEAL
Neither Complainant or the Agency submitted a brief on appeal.
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, 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").
ANALYSIS AND FINDINGS
Disparate Treatment
To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. at 802-04. Complainant carries the initial burden of establishing a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n.13. 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 prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Assuming, arguendo, Complainant established a prima facie case of discrimination based on sex and reprisal, we find that the Agency presented a legitimate, non-discriminatory reason for removing Complainant during his probationary period. As set forth above, Complainant showed that he was not able to work within the constraints of the office environment. We further find no persuasive evidence of pretext. Where a complainant is a probationary employee, we have long held that he or she is subject to retention, advancement, or termination at the discretion of an agency so long as these decisions are not based on a protected category. Kaftanic v. U.S. Postal Serv., EEOC Appeal No. 01882895 (Dec. 27, 1988) (citing Arnett v. Kennedy, 416 U.S. 134, 152 (1974)).
Harassment
Harassment of an employee that would not occur but for the employee's race, color, sex, 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 Title VII's purview." Harris, 510 U.S. at 22 (1993).
To establish a claim of harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) that 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).
In the instant case, Complainant alleged that S1 put her hands on his shoulders once and squeezed. An allegation which S1 denied, and for which there is no corroborating evidence.
With respect to his remaining claims, he also maintained that once he rejected S1's advances, and she learned of his complaints about the way the office was managed, he was subjected to reprisal and a hostile work environment, e.g., he was not sent on business trips, S1 did not speak to him at length, and he did not receive accolades. Upon review, we find that these alleged incidents were not sufficiently severe or pervasive to establish a hostile work environment. We note, that Complainant has not demonstrated and no witnesses supported Complainant's argument that S1 took any adverse action against him regarding his complaints about the way the office was run. In fact, the record indicates that S1 was not even aware that he had made such complaints. Moreover, we find Complainant did not establish that any of these alleged matters occurred because of his sex.
After a review of the record in its entirety, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision. We find the preponderance of the evidence of record does not establish that discrimination occurred.
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
__10/3/18________________
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.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120170572
6
0120170572