[Redacted], Alonzo N., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Natural Resources Conservation Service), Agency.

Equal Employment Opportunity Commission

Feb 2, 2022

Appeal No. 2021000157 (E.E.O.C. Feb. 2, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alonzo N.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Natural Resources Conservation Service), Agency. Appeal No. 2021000157 Hearing No. 490-2016-00104X Agency No. NRCS-2014-00232 DECISION On September 10, 2020, 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 August 12, 2020 final order concerning an 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. BACKGROUND During the period at issue, Complainant worked for the Agency as a Senior Economist, Grade GS-15, Senior Economist at the Resource Economics Analysis Division, National Resources Conservation Service (NRCS), in Washington D.C. In general, Complainant worked remotely from his Little Rock, Arkansas residence. On March 27, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on race (African American) when: 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 2021000157 1. On December 5, 2013, a Caucasian co-worker drew a hangman on the board during a meeting which offended Complainant, and thereafter, management ignored his requests to investigate the matter. 2. From January 2014 to March 2014, the NRCS Civil Rights Office failed to properly process Complainant’s informal complaint, in that traditional EEO counseling was not adequately conducted, his second-level supervisor was identified as the Resolving Official, and his complaint was closed without proper notice. On June 17, 2014, the Agency issued a final decision dismissing the formal complaint. The Agency dismissed Claim 1 pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The Agency dismissed Claim 2 as a spin-off complaint that expressed dissatisfaction with the complaint processing under 29 C.F.R. § 1614.107(a)(8). Complainant filed an appeal. On appeal, the Commission determined that the matter raised in Claim 1 stated a claim, concluding that the hangman’s noose is a highly charged symbol that calls up the painful national history of the lynching of thousands of African Americans and therefore stated a viable claim of discrimination that required further investigation. The Commission reversed the dismissal of Claim 1 and remanded the matter to the Agency for investigation and further processing. With regard to Claim 2, the Agency was directed to follow the procedures in EEOC Management Directive 110 concerning dealing with complaints about the quality of complaint processing. See EEOC Appeal No. 0120142625 (Nov. 3, 2015). Pursuant to EEOC’s remand order, the Agency conducted an investigation into Claim 1. The investigation revealed that Complainant attended a meeting with others in Washington on December 5, 2013. During a lunch break in the meeting, Complainant observed the facilitator of the meeting (“CW”) (Caucasian) drawing a hangman on a flip chart during a discussion with another meeting participant (“CW2”) (African American). Complainant was not part of their conversation but was in the room and could observe them. Later that day, Complainant told both CW and CW2 separately that the hangman was offensive. On December 10, 2013, Complainant sent an email to the NRCS Chief (Caucasian) reporting that he was offended when CW “drew a hangman on the flip chart board" when interacting with CW2. The NRCS Chief forwarded the email to Employee Relations and Human Resources personnel and notified Complainant that the leadership team would look into the incident and recommend appropriate action. The NRCS Chief asked the Associate Chief (African American) to conduct the inquiry into Complainant’s allegation. Complainant spoke directly with the Associate Chief about the incident, and later both CW and CW2 admitted to playing a “hangman game” on the flip chart during the break. They asserted they did not intend to offend but were friends who were simply playing a common children’s game during a break in the meeting. Both claimed they did not, at the time, perceive a racially offensive element to their actions. 3 2021000157 Following the inquiry and noting CW had never been reported before for offensive conduct, management made the decision to officially counsel CW, require him to attend sensitivity training, and provide Complainant with a written apology for the incident. The record indicates all these steps were completed. No further incident of offensive conduct by CW was reported following these actions. After an 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. On July 7, 2020, the Agency moved for a decision without a hearing. On July 20, 2020, Complainant filed his objections to the Agency motion. On July 28, 2020, the assigned AJ granted the Agency’s motion and issued a decision by summary judgment and found no discrimination. The Agency subsequently issued a final order adopting the AJ’s finding. The instant appeal followed. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where an AJ determines no genuine issue of material fact exists under the legal and evidentiary standards. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). In ruling on a summary judgment motion, the AJ is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the AJ must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable AJ could find in favor for the non-moving party. See Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); see also Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision by summary judgement, Complainant must identify material facts of record that are in dispute that require resolution through a hearing. While Complainant disputes some of the AJ’s factual conclusions, we nevertheless find that Complainant did not successfully identify material factual conflicts within this evidentiary record. An Agency is liable for harassment by a co-worker or other non-supervisor when it “knows or should have known of the conduct, unless the Agency can show that it took prompt and appropriate corrective action.” 29 C.F.R. § 1604.11(d). 4 2021000157 Whether the Agency’s action is appropriate depends upon “the severity and persistence of the harassment and the effectiveness of remedial steps.” Taylor v. Dep’t of the Air Force, EEOC Appeal No. 05920194 (July 8, 1992). The appropriateness of the Agency's conduct in response to harassment depends upon “the particular facts of the case including severity and persistence of the harassment, and the effectiveness of any initial remedial steps.” Owens v. Dep’t of Transp., EEOC Appeal No. 05940824 (Sept. 5, 1996). Appropriate corrective action is a response that is reasonably calculated to stop the harassment. On appeal, Complainant contends that CW’s version of events was deceptive and that CW’s apologies to Complainant were disingenuous. Whereas, CW stated that he had been playing the word-guessing game known as “hangman,” Complainant accused CW of drawing the hangman on the flip chart, not as part of the “hangman game”, but as an insult directed at another African American co-worker (CW2). According to Complainant, CW2 was biased in denying being offended by CW’s drawing because of her close personal relationship with CW. Complainant further argues that the AJ’s decision failed to consider testimony of a Caucasian witness (“CW3”) who was present and also offended by CW’s hangman drawing.2 A decision by summary judgment requires the facts to be viewed in the light most favorable to the non-moving party. Therefore, considering Complainant’s testimony and that of CW3, we will assume that CW’s hangman drawing was racially offensive, perhaps even by design. We acknowledge even a single noose or hangman image in the workplace can be an incident sufficiently severe to create an abusive work environment in violation of Title VII. Posey v. U.S. Postal Serv., EEOC Appeal No. 01986619 (July 10, 2001). Here, however, Complainant has not provided a sufficient basis for imputing liability to his employer under these facts as presented. The Agency has avoided liability by establishing that it took prompt and appropriate corrective action once management was notified of the incident. After Complainant reported this incident to the NRCS Chief, management conducted an inquiry into the matter and then took corrective action by counseling CW, requiring him to attend sensitivity training, and directing him to apologize to Complainant in writing. Although Complainant asserts that Agency management only conducted an “informal” inquiry of the matter rather than a formal investigation, the Agency has adequately justified that no further investigation was needed because both CW and CW2 readily admitted to CW drawing the hangman on the flip chart during the break in the meeting. Complainant has not indicated with any specificity what a more prolonged investigation would have revealed. While Complainant points to the fact that he believes CW and CW2 were not truthful when they stated that they were only playing a common hangman game, we have already found, for the sake of our analysis in this decision, that the incident was sufficiently severe to constitute racial harassment. Therefore, CW’s motivation for drawing the hangman is of no longer relevant. Moreover, while on the one hand, Complainant asserts he was not questioned during the management inquiry, on the other 2 CW3 said the following about the incident in her investigative affidavit: “Yes. It was an offensive thing to do. I am uncertain of [CW]'s understanding of what he was doing, but I don't see that as an excuse. I feel [Complainant] had a right to ask for an investigation. 5 2021000157 hand, he admits to speaking directly with the Associate Chief, who was in charge of the inquiry, about the incident. Finally, while Complainant may have wished for harsher disciplinary action against CW, the record shows the actions taken by management were effective as Complainant has not alleged that that he was subjected to further racial misconduct from CW beyond the isolated hangman incident. Based on the specific circumstances of this case, we conclude that the Agency has met its burden to show that it exercised reasonable care to correct CW’s behavior and prevent further racial harassment from occurring thereafter. Accordingly, here, we find no basis for imputing liability against this Agency. Davis v. Dep’t of the Navy, EEOC Appeal No. 0120112360 (Mar. 5, 2013). Finally, we note that, for the first time on appeal, Complainant raised an entirely new claim that he had been excluded from national meetings because of his EEO activities. Complainant is advised to seek EEO counseling if he wishes to pursue these matters further. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final action, implementing the AJ’s decision by summary judgment, finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. 29 C.F.R. § 1614.405; EEO Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9 § VII.B (Aug. 5, 2015). 6 2021000157 Complainant should submit his request for reconsideration, and any statement or brief in support of his request, via the EEOC Public Portal, which can be found at: https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his request and arguments to the Director, OFO, EEOC, via regular mail addressed to P.O. Box 77960, Washington DC 20013, or by certified mail addressed to 131 M St. NE, Washington DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. 29 C.F.R. § 1614.604. The Agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). 29 C.F.R. § 1614.403(g). Either party’s request or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. 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. 7 2021000157 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 February 2, 2022 Date