[Redacted], Leonard T., 1 Complainant,v.Gina M. Raimondo, Secretary, Department of Commerce (Bureau of the Census), Agency.

Equal Employment Opportunity Commission

Oct 20, 2021

Appeal No. 2020003669 (E.E.O.C. Oct. 20, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Leonard T.,1 Complainant, v. Gina M. Raimondo, Secretary, Department of Commerce (Bureau of the Census), Agency. Appeal No. 2020003669 Agency No. 63-2019-00265D DECISION On June 5, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 7, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. At the time of events giving rise to this complaint, Complainant worked as an AD-0301-00/00 Area Census Office Manager at the Agency’s Los Angeles Regional Census Center in Los Angeles, California. Complainant entered duty on January 22, 2019, on a term appointment not to exceed January 23, 2020. On July 5, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of race (African American), disability (Post-Traumatic Stress Disorder), and reprisal (for prior protected EEO activity) when: (1) on April 23, 2019, he attended an all management training in Riverside, California. After the first training day, he approached his first-line supervisor (S1) and informed him that when the Area Census Office Manager (ACOM) position opened up in usajobs.gov for the “6 Wave 2 offices” that he (Complainant) would be applying for the position in West Covina, California. 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. 2020003669 2 He states that he expressed to S1 that he (Complainant) and his wife were looking at purchasing their first home in Ontario, California, which is less than a 30-minute drive from West Covina and a more affordable area to buy property than the Woodland Hills area. S1 then stated that it is a good time to buy and encouraged it, then asked whether he (Complainant) was considering “going to the Pasadena Office.” He then expressed to S1 that Ontario to Pasadena is twice the distance from Ontario to West Covina and that he was only interested in the West Covina ACOM position. Just one week later after the all management training in Riverside, S1 said to him, “Have you thought about the Inglewood Office? I think you would do good there in that area, if you know what I mean.” S1 also stated that others in management thought so, too. Complainant says that he felt very offended because he felt S1 “was referring to himself and other upper management wanting [Complainant] a Black man to be the ACOM of Inglewood, an area of Los Angeles that is predominately Black” rather than working in the area he currently works in, which is Woodland Hills, which is “a predominate[ly] White area or West Covina a predominate[ly] Hispanic and Asian area.” While he told S1 that he was not considering Inglewood and that West Covina was his desired office location, over the course of a few weeks, S1 continuously asked him about Inglewood and made comments about how he should consider Inglewood; (2) S1 was verbally abusive towards him regarding a situation involving a co-worker who had confronted S1 about verbal abuse; (3) S1 incorrectly accused him of over-hiring staff; (4) S1 called him stating that he (S1) had heard from “an informant in the office” that Complainant closes his office door which was not allowed. While responding, S1 interrupted him and said that he also heard that they were “slow on the QC CFS Selections,” even though this was completely false; (5) S1 told him that there are two allegations against him - the first being that on the Friday before Mother’s Day, Complainant told his staff to falsify timesheets and the second being that Complainant had tried to “pre-select” someone; (6) when he tried to talk to S1 in a professional manner, S1 did not listen and many times “cuts [him] off in the middle of [his] statement;” (7) after hearing that the Information Technology Manager, (IT) was resigning, and taking a position with the Internal Revenue Service (IRS), S1 called IT regarding the allegations against him (Complainant) and he heard S1 say, “[IT] you can answer truthfully because you are leaving and have no dog in this fight” and then went on to question IT and “probe information out of IT regarding the allegations” against him. IT further advised him that someone in upper management interrogated one of his clerks “for information about the situation;” (8) S1 constantly told him “in an angry tone” that he knows that Complainant is “trying to hide things” from him, and also expressed that Complainant wants “to run the office [his] way;” (9) every time he tried to talk to defend himself with anything, S1 cut him off in the middle of his sentence, repeating the same question S1 asked Complainant to answer that S1 refused to allow him Complainant to answer; (10) S1 refused to meet with him directly to discuss his concerns; and (11) he was terminated, effective June 10, 2019. 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). In accordance with Complainant’s request, the Agency issued a final decision in which it found that Complainant failed to show that he was subjected to discrimination or reprisal as alleged. The instant appeal followed. 2020003669 3 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 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; and (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. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In short, 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 a protected basis. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Anti-discrimination statutes are not general civility codes designed to protect against the “ordinary tribulations” of the workplace. See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998); see also Lassiter v. Dep't of the Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial slights and petty annoyances between an alleged harasser and a complainant do not rise to the level of harassment). Instead, EEO laws address discriminatory conduct that alters the work environment. See Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). In this case, the Commission finds that the totality of the alleged conduct at issue was insufficiently severe or pervasive to establish a hostile work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, there is no persuasive evidence in the record that discriminatory or retaliatory animus played a role in any of the Agency's actions. 2020003669 4 Rather, the evidentiary record reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, and general workplace disputes and tribulations. As a result, the Commission finds that Complainant was not subjected to a discriminatory or retaliatory hostile work environment as alleged. Disparate Treatment To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. 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, 411 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). We agree with the analysis and findings set forth in the Agency’s final decision. Assuming arguendo that Complainant established a prima facie case of discrimination and reprisal, the record does not support the finding that the legitimate, non-discriminatory explanations offered by management for its actions were a pretext for discrimination or retaliation. Specifically, S1 stated he issued the termination letter due to Complainant’s inappropriate conduct. S1 explained that Complainant following an incident on the Friday before Mother’s Day where Complainant instructed employees on his team who were mothers to depart early for the day without using leave or noting the leave on their timecards in violation of Agency policies. S1 added that witnesses submitted statements supporting that Complainant gave the instruction. In addition, S1 stated that it had been reported to him that Complainant attempted to pre-select an acquaintance. Based on these issues, S1 decided to terminate Complainant. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant chose not to request a hearing; therefore, the Commission does not have the benefit of an Administrative Judge's credibility determinations after a hearing and can only evaluate the facts based on the weight of the evidence presented. Complainant presented no evidence, other than subjective beliefs and assertions, that the actions complained of were taken because of his protected classes. Thus, the Commission concludes that Complainant has not presented evidence sufficient to prove that he was subjected to discrimination or reprisal as alleged. 2020003669 5 CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, we AFFIRM the Agency’s final decision because the preponderance of the evidence does not establish unlawful discrimination or harassment as alleged by Complainant. 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). 2020003669 6 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 October 20, 2021 Date