[Redacted], Bernard S., 1 Complainant,v.Janet L. Yellen, Secretary, Department of the Treasury (U.S. Mint), Agency.

Equal Employment Opportunity Commission

Aug 24, 2021

Appeal No. 2020003782 (E.E.O.C. Aug. 24, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bernard S.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (U.S. Mint), Agency. Appeal No. 2020003782 Agency No. MINT-18-1027-F DECISION Complainant timely 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 March 13, 2020, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUES PRESENTED The issues presented on appeal are (1) whether Complainant established that the Agency's proffered explanation for its actions was pretext to mask discrimination on the bases of sex and race; and (2) whether Complainant established that he was subjected to a hostile work environment based on his protected classes, as alleged. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Police Officer at the Agency’s U.S. Bullion Depository in Fort Knox, Kentucky. Report of Investigation (ROI), at 12. 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. 2020003782 2 The Lieutenant (female, Caucasian) served as Complainant’s first-level Supervisor (S1), and the Inspector (female, Caucasian) served as Complainant’s second-level Supervisor (S2). The Field Chief (male, Caucasian) was assigned as Complainant’s third-level Supervisor (S3). According to Complainant, S1 intercepted his email traffic on January 29, 2018, regarding the non-assignment of overtime to another Officer, and asked him to prepare an inquiry on the overtime matter. Report of Investigation (ROI) at 89-90. Complainant believed that S1’s actions toward him regarding the overtime matter were done with the intent to harass him, as there was an incorrect posting of overtime that was not in his handwriting. Id. S1 explained, however, that Complainant made an error in the overtime recruitment process and tracking, and on January 29, 2018, Complainant recruited an Officer to work four hours of overtime without recording it or updating the numbers on the overtime tracking document. Id. at 161-62. S1 averred that Complainant’s error led to the wrong Officer being assigned overtime on January 31, 2018, and so she asked Complainant to write a memorandum regarding the matter. Id. Complainant also maintained that on February 3, 2018, a Subordinate Officer began to argue with him, saying that they could go across the street and take off their belts and settle it. Complainant attested that after he told S2 of his argument with the Subordinate Officer, S2 responded by presenting him with a Letter of Counseling. Id. at 91-93. According to Complainant, the Subordinate Officer had been disrespectful to him numerous times over the past year, had not completed his work in a timely fashion, was confrontational, and showed little initiative in supporting coworkers and the mission. Id. at 121-22. In response, S2 explained that she issued Complainant the Letter of Counseling, the lowest form of discipline possible, because another Officer witnessed Complainant charging the Subordinate Officer with his fists balled up. Id. at 407. S2 explained that the Officer had to put his hand on Complainant’s chest to stop Complainant from getting closer to the Subordinate Officer. Id. S2 averred that he also issued a Letter of Reprimand to the Subordinate Officer for his actions towards Complainant. Complainant additionally maintained that on April 9, 2018, another Officer accused him of lying and “gave him a profanity laced directive in the presence of other officers.” Id. at 126. S1 responded that Complainant contacted her via phone on April 9, 2018, accusing the Officer of cursing at him in front of other employees. Id. at 164-65. According to S1, other officers who witnessed the matter on April 9, 2018, said that the Officer had not cursed at Complainant but was loud, upset, and was inappropriate in her conduct. Id. S1 explained that the Officer later apologized to Complainant for her conduct towards him. Id. Complainant attested, moreover, that management told him that he could not attend the Women in Federal Law Enforcement (WIFLE) conference, so S2 approved his request to attend the National Organization for Black Law Enforcement (NOBLE) training. Id. at 128. However, according to Complainant, when he attempted to check-in for his flight to the NOBLE training, he learned it had been canceled by the Agency. Id. 2020003782 3 So, he called S1 about matter. Id. S1 explained that on July 27, 2018, she received a phone call from Complainant, who was at the airport with his wife, stating that his flight had been canceled. S1 averred that she asked Complainant if his travel authority had been approved, but Complainant said he had received an email the night before from the Agency’s travel system which said that his flight had been canceled. Id. at 168-69. S1 stated that she learned from the Travel Manager that Complainant’s trip was canceled because Complainant failed to fully complete the requested travel authorization documentation. Id. Complainant further attested that he asked why his request to attend the WIFLE training had been denied during a supervisor’s lunch on April 2, 2018. Complainant averred that S3 responded to him that his “big black ass” did not need to be at a course with all those women. Complainant later stated that he thought S3 may have instead said “big ass.” Id. at 128. The Sargent however averred that she witnessed S3 tell Complainant “that they don’t want to see a big black guy at WIFLE.” Id. at 665. Complainant however did not report the comment until September 2018, five months later. In addition, according to Complainant, on August 23, 2018, S1 called him into her office, began shouting at him, said she was going to take his weapon, and then followed him down the hallway screaming at him. However, S1 maintained that Complainant became increasingly hostile after his trip to the NOBLE training was canceled, so she invited Complainant to her office to talk about what was upsetting him. Id. at 174-76. S1 asserted that Complainant was becoming more and more upset, and therefore she told him that he needed to go upstairs, turn-in his weapon, and then go home for the night because he was too upset. Id. S1 contended that Complainant refused her directions and shouted that he was going to see S2, so she followed him down the hallway. Id. Complainant also maintained that he and the Sargent completed all the award work for the third shift at the request of S1 in September 2018. Id. at 103-104. He averred that S1 and S2 then criticized him for doing such a poor job and the awards were later forwarded to S2 to be completed. Id. In response, S2 explained that the proposed product she received from Complainant for monetary awards was simply cut and pasted from awards for the past two years. Id. at 491. She stated that much of the information was outdated or not accomplished by the employee. Id. Complainant further attested that he was charged $157.92 for a hotel room at the NOBLE training that was canceled, and that he was not provided with any assistance from management in obtaining a reimbursement for the room. Id. at 104-108. S1 responded that she was aware there were hotel group reservations made by the Trip Coordinator, so she instructed Complainant to contact the Trip Coordinator as well as the hotel about their cancellation policy. Id. at 181. However, the Trip Coordinator attested that Complainant did not seek out her assistance, and so she was unaware that Complainant had been improperly charged for a hotel room. Id. at 658. 2020003782 4 Thereafter, on October 25, 2018, Complainant was issued his annual performance appraisal with a rating of 100/200 for the period covering January 2018 through October 2018. According to Complainant this was the lowest rating possible. Id. at 109-10. Complainant attested that the annual performance appraisal, completed by S1, indicated that he had a bad attitude, lacked focus, and made mistakes with paperwork. Id. Complainant believed that he should have instead received a rating of 150 to 160, as he was responsible for the daily paperwork for all three shifts. On November 21, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and sex (male) when: 1. In January 2018, S1 intercepted his email traffic and contacted him in the middle of the night via email, cell phone, and work phone; 2. On February 14, 2018, he received a Letter of Counseling as a result of an altercation with a Subordinate Officer; 3. In April 2018, although a Subordinate Officer accused him of lying and a second Subordinate Officer gave him a profanity laced Directive, management failed to take corrective action; 4. His supervisors cancelled his trip to attend a National Organization for Black Law Enforcement Executives (NOBLE) course in Florida, and spoke to him in an unprofessional and disrespectful manner; 5. On August 23, 2018, S1 called Complainant into her office, began shouting at him, and while pointing her finger, said she was going to take his weapon, and then she followed him down the hallway screaming at him; 6. In August 2018, management accused him of doing a poor job in completing his employees' year-end awards; 7. In August/September 2018, he was charged for a hotel room to the cancelled NOBLE conference and his supervisors failed to provide him with any assistance to pay for the room; and 8. On October 25, 2018, he received the lowest annual appraisal rating of his career. Following 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 requested a hearing, but the AJ denied the hearing request on the grounds that Complainant failed to provide a compelling reason for why he missed the scheduled hearing. The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). 2020003782 5 The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Final Agency Decision Specifically, in addressing claim 1, the Agency noted that Complainant admitted that he did not believe that his race or sex motivated the Agency’s actions. Regarding claim 2, the Agency noted that S2 found it concerning that Complainant, as supervisor, had verbally and physically threatened a Subordinate Officer. The Agency noted that S2 could have proposed a more severe disciplinary action but decided she would issue the lowest form of discipline possible. With regard to claim 3, the Agency observed that S1 admonished the Officer for her conduct and she also later apologized to Complainant. The Agency further observed, with respect to claim 4, that Complainant acknowledged that his travel was cancelled as a result of his own negligence for not signing the appropriate documentation in the travel system. The Agency additionally noted, regarding claim 5, that S1 and Complainant both raised their voices toward each other, and S1 denied saying that she was going to take his weapon. The Agency noted that S1 simply said to Complainant that it was time for him to go home and turn-in his weapon. As for claim 6, the Agency noted that S2 was not happy with Complainant’s work with respect to year-end awards because she recognized that Complainant and the Sargent had merely copied and pasted from previous submissions. In addressing claim 7, the Agency indicated that S1 and S2 informed Complainant to contact the hotel to cancel the reservations, but Complainant never followed-up with them again regarding his concern. The Agency further noted regarding claim 8, that S2 observed Complainant making frivolous mistakes regarding assigning overtime, assigning posts, and he missed deadline dates on both employee awards and employee performance plans. Also, with regard to Complainant’s allegation that S3 referred to him as “big black ass,” the Agency noted that an investigation was immediately launched into the matter by S3’s Supervisor. The Agency however noted that S3’s Supervisor found insufficient evidence to conclude that S3 actually made the comment as alleged because Complainant submitted a statement wherein he stated that he was unsure whether S3 said “big Black ass or big ass," and because S1 and S2, who were present at the meeting in question, denied hearing the statement. The Agency also noted that Complainant failed to alert any management officials that the statement was made until five months later, after his NOBLE trip had been canceled. The Agency found that management proffered legitimate, non-discriminatory reasons for its actions and Complainant failed to establish that any of the events were due to his sex or race. The Agency concluded that Complainant did not prove he was subjected to discrimination or harassment, as alleged. CONTENTIONS ON APPEAL Complainant did not file a brief on appeal. The Agency requests that we affirm its final decision finding no discrimination. 2020003782 6 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 (Claims 2, 4, 6, and 8) To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp, v. Green, 411 U.S. 792 (1973). She must generally establish 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). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Upon review, we find that, assuming arguendo, that Complainant established a prima facie case of discrimination based on his race and sex, the Agency articulated legitimate, nondiscriminatory reasons for its actions regarding claims 2, 4, 6, and 8. With regard to claim 2, S2 explained that she issued Complainant with the Letter of Counseling, the lowest form of discipline possible, because another Officer witnessed Complainant charging the Subordinate Officer with his fists balled up. S2 explained that the Officer had to put his hand on Complainant’s chest to stop Complainant from getting closer to the Subordinate Officer. Regarding claim 4, S1 stated that she learned from the Travel Manager that Complainant’s trip was canceled because he failed to fully complete the requested travel authorization documentation. With respect to claim 6, S2 stated that Complainant’s work product for monetary awards was inaccurate and merely cut and pasted from previous years’ awards. As for claim 8, S2 attested that Complainant made mistakes regarding assigning overtime, assigning posts, and he missed suspense date deadlines on both employee awards and employee performance plans. 2020003782 7 The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 254. Upon review, we find that Complainant has not established that the Agency’s reasons for its actions were pretextual based on his sex or race. In so finding, we note, regarding claim 2, that Complainant does not dispute that he got into an argument with the Subordinate Officer. The record reflects that S2 also issued the Subordinate Officer a Letter of Reprimand for his conduct towards Complainant. With respect to claim 4, Complainant also does not dispute that he failed to fully complete the requested travel authorization documentation. As for claims 6 and 8, we can find no evidence that either S1’s or S2’s actions herein were motivated by discriminatory animus. Since the AJ denied Complainant’s hearing request, due to Complainant’s unexcused absence from the scheduled hearing, we do not have the benefit of an AJ's credibility determinations regarding the witnesses in this case. We find that Complainant did not show he was subjected to disparate treatment based on his protected classes regarding claims 2, 4, 6, and 8. Hostile Work Environment (Claims 1, 3, 5, and 7) Finally, to the extent that Complainant is alleging that he was subjected to a hostile work environment, the Commission finds that, under the standards set forth in Harris v. Forklift Systems. Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 3, 1994). As an initial matter, a case of harassment based on claims 2, 4, 6 and 8 is precluded by our finding that Complainant did not establish that any of those actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). With respect to claims 1, 3, 5, and 7, we find that while Complainant’s work environment may not have been ideal, he has not proven sufficiently severe or pervasive events to show that he was subjected to a hostile work environment. We note that EEO laws are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998) We note, moreover, that not every unpleasant or undesirable action which occurs in the workplace constitutes an EEO violation. See Shealey v. Equal Emp't Opportunity Comm'n., EEOC Appeal No. 0120070356 (Apr. 18, 2011) (citing Epps v. Dep't of Transp., EEOC Appeal No. 0120093688 (Dec. 19, 2009)). We find no corroborating evidence that S3 specifically stated to Complainant that his “big black ass” did not need to be at the WIFLE course with all those women. Even Complainant later stated that he thought S3 may have instead said “big ass.” Id. at 128. However, the Sargent averred that she did witness S3 tell Complainant “that they don’t want to see a big black guy at WIFLE.” Yet, Complainant did not report S3’s comment until five months after it was allegedly said. 2020003782 8 Although S3’s isolated comment, as reported by the Sargent, was unprofessional and offensive, it was not severe enough to establish a hostile work environment. We find that, while Complainant’s work environment may have been undesirable, he has not shown that that the Agency’s actions rose to the level of creating a hostile work environment.2 Accordingly, we find that Complainant did not show that the Agency subjected him to harassment based on race or sex. 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 decision 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. 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). 2 We remind the Agency of its duty under Title VII to provide a work environment free of unlawful discriminatory harassment. The Commission does not condone S3's alleged remarks, we merely find that such behavior, although unprofessional and inappropriate, has not been proven to have occurred as alleged and, without more, does not rise to the level of a hostile work environment. The Commission has repeatedly found that claims of a few isolated incidents of alleged harassment usually are not sufficient to state a harassment claim. See Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Health and Human Serv., EEOC Request No. 05940481 (Feb.16, 1995). 2020003782 9 Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, 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. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/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. 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. 2020003782 10 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 August 24, 2021 Date