[Redacted], Lawrence O., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Mar 16, 2022

Appeal No. 2021004943 (E.E.O.C. Mar. 16, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lawrence O.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2021004943 Hearing No. 420-2017-00078X Agency No. BOP-2012-0242 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s August 25, 2021 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. At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Complex Captain, GS-0007-13, at the Federal Correctional Complex in Yazoo City, Mississippi. On January 23, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment based on his race (Pacific Islander) when, from June until October 2011, his supervisor subjected him to daily harassment in the form of unwarranted criticism of his work performance, yelling, and threats of disciplinary actions ultimately resulting in Complainant’s constructive demotion to a GS-12 Unit Manager. 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. 2021004943 2 After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. On May 30, 2014, the EEOC AJ assigned to the matter dismissed Complainant’s request for a hearing after determining that Complainant had raised an issue (demotion) that was appealable to the Merit Systems Protection Board (MSPB), and hence he did not have the right to request a hearing before an EEOC AJ. The Agency issued a final order fully adopting the AJ’s hearing request dismissal. Complainant appealed to the Commission arguing that he did not believe that the matter was a mixed-case complaint. Notwithstanding, on August 27, 2014, the Agency issued a final decision with appeal rights to the MSPB. Complainant filed an appeal with the MSPB and the MSPB ultimately dismissed the matter for lack of jurisdiction. In Herb P. v. Dep’t of Justice, EEOC Appeal No. 0120142584 (Nov. 22, 2016), the Commission ordered the Agency to recommence processing the complaint as a non-mixed complaint, which required the Agency to submit a hearing request on Complainant’s behalf. The AJ assigned to the matter subsequently issued a summary judgment decision in favor of the Agency. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See 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 without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, however, Complainant has failed to establish such a dispute. 2021004943 3 Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. Hostile Work Environment To establish a hostile work environment claim, 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 to the Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). The antidiscrimination statutes are not civility codes. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). Therefore, to prove his harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of his protected classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Here, Complainant alleged that his supervisor subjected him to a hostile work environment based on several incidents, including “denigrating” his management style; berating him over work matters on several occasions; and threatening him with demotion. We agree with the AJ that the alleged incidents, taken together, are not sufficiently severe or pervasive to be unlawful. Rather, the incidents challenged by Complainant reflect common workplace disagreements between supervisors and subordinates that relate to disagreements with managerial decisions and processes, including those relating to assignments. Without evidence of an unlawful animus, we have found that similar disputes do not amount to unlawful harassment. See Complainant v. Dep't of Def., EEOC Appeal No. 0120122676 (Dec. 18, 2014) (The record established that the issues between the complainant and the supervisor were because of personality conflicts and fundamental disagreements over how work should be done and how employees should be supervised, and there is no indication that the supervisor was motivated by discriminatory animus towards the complainant's race, sex. or age); Lassiter v. Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (Personality conflicts, general workplace disputes, trivial slights and petty annoyances between a supervisor and a complainant do not rise to the level of harassment). Looking at the allegations in totality and in a light most favorable to Complainant, these events are not sufficiently severe or pervasive to alter the conditions of Complainant’s employment. See, e.g., Taylor v. Dep’t of Educ., EEOC Appeal No. (June 19, 2009) (alleged acts, including supervisor “yelling” at complainant in meeting and writing critical and abrasive emails, not sufficiently severe or pervasive). 2021004943 4 Even assuming, the alleged incidents were sufficiently severe or pervasive, the record is devoid of evidence that any responsible management official was motivated by discriminatory animus. The record is clear that Complainant and S1 had personality conflicts and a contentious relationship; however, S1’s comments were limited to criticisms of Complainant’s work and managerial abilities. There is no evidence demonstrating the S1 was motivated by unlawful considerations of Complainant’s race in his treatment of Complainant. Complainant acknowledged that he believed that S1 micromanaged him because S1 still wanted to be Complex Captain. Construing the evidence in the light most favorable to Complainant, the Commission finds that there is no evidence demonstrating that Agency officials were motivated by discriminatory animus. Moreover, to the extent Complainant claims that he was subjected to disparate treatment, the Commission finds that Complainant has not proffered any evidence demonstrating that the Agency's explanation for its actions was pretext for discrimination. Accordingly, we find that Complainant has not shown that she was subjected to discrimination or a hostile work environment. Constructive Demotion Generally, a forced resignation (whether it results in a discharge or demotion) occurs when an employer knowingly allows conditions of discrimination so intolerable that a reasonable person would have felt compelled to resign. See Spangle v. Valley Forge Sewer Authority, 839 F.2d 171, 173 (3rd Cir. 1988). Accordingly, in order to prove a claim of constructive demotion, Complainant must show that: (1) a reasonable person in his position would have found the working conditions intolerable; (2) conduct which constituted a violation of anti-discrimination laws created the intolerable working conditions; and (3) Complainant's involuntary resignation resulted from those intolerable working conditions. See Sprangle at 173; Morgan v. Dep't of Veterans Affairs, EEOC Appeal No. 01944845 (March 27, 1996). Here, we find that Complainant's claim of constructive demotion fails because he did not show that any of the conduct at issue was based on discriminatory animus. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 2021004943 5 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). 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. 2021004943 6 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 March 16, 2022 Date