U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Orval T.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2020001742 Hearing No. 440-2019-00060X Agency No. HS-TSA-00796-2018 DECISION On January 12, 2020, Complainant filed a premature appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), prior to the issuance of the Agency’s January 24, 2020 final order 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order in part and REVERSES and REMANDS in part. ISSUES PRESENTED The issues presented on appeal are: (1) whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing; and (2) whether preponderant evidence in the record establishes that Complainant was subjected to discrimination based on national origin, age, and/or reprisal as alleged in the claims for which summary judgment was appropriate. 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. 2020001742 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an SV-1802-E Transportation Security Officer (TSO) at the Agency’s Midway International Airport in Chicago, Illinois. Complainant worked the third shift. Complainant identified his national origin as Mexico, and he was 53 years old during the relevant time. Complainant stated that he engaged in protected EEO activity in September 2017 when he complained to management that a Supervisory TSO (S1) harassed him and when he contacted an EEO Counselor on January 11, 2018. According to Complainant, S1 started harassing him in 2017. Complainant averred that, on September 4, 2017, after he rotated into working the exit lane, he was “tapped out” almost immediately by another TSO. Complainant alleged that S1 called him over and loudly told him that she did not want him to get into the habit of working the exit lane and travel document checker (TDC) positions, ridiculing him in front of his coworkers. On September 7, 2017, Complainant sent an email to a Transportation Security Manager (S2), the Assistant Federal Security Director for Mission Support (S3), and his union representative stating that S1 was harassing him by singling him out in front of his peers and by telling him not to get in the habit of working the exit lane. Report of Investigation (ROI) at 161. On September 8, 2017, S3 responded, asking S2 to address the issue and let her know the resolution. The record contains an October 12, 2017, memorandum from S2 which states that, after investigating Complainant’s complaint, S1 and three Lead TSOs had all reported that they would assign him to one position, only to find him at the TDC or exit lane positions instead. S2 noted that the issue appeared to be worsened by the fact that third shift did not utilize lane rotation sheets for assignments. Complainant averred that S1 continued to harass him and interfere when he worked in the exit lane or at the TDC position. Complainant stated that, in January 2018, a Lead TSO (L1) told him that S1 apparently did not want Complainant working the TDC position. L1 stated that he assigned Complainant to work the TDC area one day during the shift change. According to L1, another Lead TSO told him that S1 did not want him working that position, so he moved Complainant and told him that S1 did not want him there. L1 averred that Complainant got upset when he relayed that S1 did not him working at that position. L1 stated that his understanding was that S1 did not want Complainant at the TDC or exit lane positions because he worked at those positions too frequently. Complainant alleged that S1 harassed him based on national origin and age because she did not treat non-Mexican and/or younger employees the same way she treated Complainant. On January 9, 2018, Complainant sent an email to S2, S3, and his union representative, complaining that S1 continued to harass him. In the email Complainant averred that, after being singled out by S1, “I Am left feeling like I Am being discriminated for being of Mexican Origin or out of personal disgust.” ROI at 163. On January 11, 2018, S3 responded to Complainant’s email, stating that S2 would follow up with him and investigate his complaint. 2020001742 3 Complainant alleged that, at a January 2018 meeting with S2 and another TSM (S4), S2 became upset when she learned he had contacted an EEO Counselor, stating, “How dare you file a complaint alleging racial discrimination.” ROI at 66. Complainant averred that S2 also threatened him and stated that “[he] should be more careful now that [he had] a target on [his] back.” ROI at 64. Complainant added that, during the meeting, S2 told him, “You are a grown man control yourself.” ROI at 73. According to Complainant, during the same meeting with S2, S4 told him, “You should have come to us first instead of filing an EEO complaint. We could have handled it here.” ROI at 66. S2 averred that, during a January 11, 2018, meeting with Complainant and S4 regarding Complainant’s January 9 email, Complainant mentioned filing an EEO complaint. According to S2, S4 told Complainant that, if he had any problems with a supervisor, he should come to see a manager first to see if management could help. S2 added that, during the meeting, she “had to reprimand [Complainant] for his rude, disrespectful behavior towards myself.” ROI at 87. S2 denied saying, “How dare you file a discrimination complaint.” She also denied telling Complainant, “You should be more careful now that you have a target on your back.” S2 denied threatening Complainant with discipline. S4 stated that, during the January 2018 meeting with Complainant and S2 to learn about Complainant’s concerns, “I voiced my surprise to [Complainant], that he took his concerns to EEO without coming to a manager first. I expressed that he should have come to a manager before [his concerns] became bad enough to go to the EEO office.” ROI at 118. When asked exactly what he said to Complainant, S4 said, “I asked him why he did not come to a manager to resolve his concerns before he filed a complaint.” Id. When asked why he made this statement, S4 responded, “Any time a subordinate has a problem, we have always discussed that we try to resolve it at the lowest possible level prior to taking it to the next level. If there is a complaint about a supervisor, you go to a manager, and then to the DAFSD, or EEO. We encourage officers to address complaints at the lowest possible level, before escalating it to a higher officer or EEO.” ROI at 125. When asked if S2 told Complainant something along the lines of, “How dare you file a discrimination complaint!”, S4 responded, “I do not think it was exactly that.” ROI at 120. According to S4, Complainant expressed that he felt that S2 was talking down to him and told her, “Something to the effect of ‘I’m not stupid.’” Id. S4 averred that S2 was offended “and said something like, ‘How dare you take that tone with me. I am a manager, and you will speak to me with respect.’” ROI at 120-21. S4 stated he was not aware of S2 telling Complainant he should be more careful now that he had a target on his back or S2 threatening Complainant with discipline. After the initial January 2018 meeting with Complainant and S4, S2 investigated Complainant’s allegation that he was being harassed and not permitted to work the exit lane. 2020001742 4 According to S2, a Lead TSO (L2) stated that he removed Complainant from the exit lane when he overheard female contractors complaining that Complainant was hitting on them and handed out his home address and telephone numbers to the contract employees, stating that he could help them with applications for jobs with the Agency. S2 averred that she told L2 that, although she needed to address the complaints from the contractors, Complainant still needed to rotate through all the checkpoint positions during his shift. According to Complainant, during a January 24, 2018, meeting with S2, she brought up false accusations that Complainant was harassing female passengers and/or female contractors at the airport. Complainant averred that, although he responded that the allegations were baseless, S2 threatened him that, if the accusations were true, he would be fired or disciplined. S2 stated that she had a follow up meeting with Complainant and S4 on January 25, 2018. According to S2, she told Complainant that L2 indicated that he was responsible for directing Complainant to be moved from the exit lane and that it was because of his behavior towards the female contractors. S2 averred that Complainant loudly denied that he had behaved improperly towards the female contractors and told her that he was offended by S2 suggesting that he had. According to S2, she told Complainant that she was putting him on notice that, whether or not he behaved improperly, that type of behavior was unacceptable and that future complaints could be grounds for discipline. The record contains a January 25, 2018, email from S2 to herself, stating that she met with Complainant and S4 the day before. On January 30, 2018, S3 emailed Complainant and copied S2 and S4. In the email, S3 stated that she had reviewed S2’s investigation of Complainant’s complaint that S1 was harassing him and determined that his allegations were unfounded. On January 11, 2018, Complainant contacted an EEO Counselor and filed a formal EEO complaint on March 14, 2018, alleging that the Agency discriminated against him on the bases of national origin (Mexico), age (53), and reprisal for prior protected EEO activity (opposing discrimination and the instant EEO complaint) when: 1. In or around January 2018, management ridiculed Complainant in front of his peers; 2. In or around January 2018, management restricted Complainant from working the exit lanes without an explanation; 3. In or around January 2018, management stated, “[Complainant] should be more careful now that [he had] a target on [his] back”; 4. In or around January 2018, management stated, “[Complainant] should have come to us first instead of filing an EEO complaint. We would have handled it here”; and 5. In or around January 2018, management threatened Complainant with disciplinary actions. 2020001742 5 At the conclusion of the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC AJ. Over Complainant’s objections, the AJ granted the Agency’s October 4, 2019, motion for summary judgment and issued a decision finding no discrimination. The AJ found that Complainant did not raise any genuine issues of material fact. Regarding allegations (1) and (2), the AJ concluded that there was no evidence that the alleged harassment was based on his membership in any protected class or that the alleged harassment was sufficiently severe or pervasive to create a hostile work environment. As for claim (4), the AJ found that S4’s comment was in line with the Agency’s policy of encouraging employees to resolve complaints at the lowest possible level and that it did not have a chilling effect on the EEO process, noting that “Complainant never alleged the statement was made with any hostility or to criticize.” AJ Decision (AJD) at 9. Regarding Complainant’s allegation that S2 said, “How dare you file a discrimination complaint,” the AJ found that S2 likely did not make the comment as alleged, noting, “In the context of a heated exchange about performance, it is logical to conclude that [S2] told Complainant how dare he take that tone with her, not ‘how dare he file a discrimination complaint.’” Id. Finally, the AJ found that, assuming arguendo that S2 made the comment about Complainant having a target on his back (claim (3)), “Complainant failed to tie the comment to his EEO activity2. The comment does not on its face discourage an employee from participating in the EEO process, and therefore is not a per se violation of the reprisal law.” AJD at 10. On January 12, 2020, Complainant filed the instant appeal. Thereafter, the Agency issued its January 24, 2020, final order, fully implementing the AJ’s decision. We find that the Agency’s issuance of the final order cured Complainant’s initially premature appeal. Complainant did not submit any timely statement or brief in support of his appeal. In response to Complainant’s appeal, the Agency requests that its final order fully implementing the AJ’s decision be affirmed. STANDARD OF REVIEW 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 2 We note that although the AJ did not explicitly cite claim (5), the decision included reference to the January 25, 2018 meeting wherein Complainant was notified, in the AJ’s words, that “improper conduct could be grounds for discipline.” 2020001742 6 MD-110), at Chap. 9, § VI.B. (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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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 Summary Judgment We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. 2020001742 7 According to the Supreme Court, Rule 56 itself precludes summary judgment “where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition.” Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing). The courts have been clear that summary judgment is not to be used as a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st Cir. 1975). The Commission has noted that when a party submits an affidavit and credibility is at issue, "there is a need for strident cross- examination and summary judgment on such evidence is improper." Pedersen v. Dep’t of Justice, EEOC Request No. 05940339 (Feb. 24, 1995). Allegations (1) and (2) After a careful review of the record, we find that the AJ appropriately granted the Agency’s motion for summary judgment regarding allegations (1) and (2). Complainant has failed to identify a genuine issue of material fact related to his allegations that he was subjected to discrimination when he was humiliated in front of his peers or when he was restricted from working the exit lanes. Allegations (3), (4), and (5) However, we find that the AJ erred when she granted summary judgment for the Agency on Complainant’s remaining allegations. We find that the record requires further development because there are genuine issues of material fact and issues of credibility that require a hearing. In these claims, Complainant alleged that, after he contacted an EEO Counselor on January 11, 2018, he was subjected to the following: (3) S2 told Complainant that “[he] should be more careful now that [he had] a target on [his] back”; (4) that S4 told Complainant that “[he] should have come to us first instead of filing an EEO complaint. We would have handled it here”; and (5) management threatened Complainant with disciplinary actions. We find that, viewing all disputed facts in the light most favorable to Complainant as the non-moving party and drawing all justifiable inferences in Complainant’s favor, a reasonable finder of fact could find that Complainant was subjected to reprisal. The statutory anti-retaliation provisions prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter a reasonable employee from engaging in protected activity. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). On the one hand, petty slights and trivial annoyances are not actionable. On the other, adverse actions or threats to take adverse actions such as reprimands, negative evaluations, and harassment are actionable. EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004 at II.B (Aug. 25, 2016). 2020001742 8 Given the importance of maintaining “unfettered access to [the] statutory remedial mechanisms” in the anti-retaliation provisions in Title VII, our cases have found that a broad range of actions can fall into this category. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 64 (2006) quoting Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997). For example, we have held that a supervisor threatening an employee by saying “What goes around, comes around” when discussing an EEO complaint constitutes an adverse action. Vincent v. U.S. Postal Serv., EEOC Appeal No. 0120072908 (Aug. 3, 2009), request for recon. denied, EEOC Request No. 0520090654 (Dec. 16, 2010). We have also found that a supervisor attempting to counsel an employee against pursuing an EEO complaint “as a friend,” even if intended innocently, is an adverse action. Woolf v. Dep’t of Energy, EEOC Appeal No. 0120083727 (June 4, 2009) (violation found when a labor management specialist told the complainant, “as a friend,” that her EEO claim would polarize the office). It is undisputed that, after Complainant disclosed that he contacted an EEO Counselor, S4 told Complainant that he should have approached management prior to filing an EEO complaint. The AJ found that, because Complainant “never alleged the statement was made with any hostility or to criticize” and because S4 “did not exert any pressure on Complainant” to drop his complaint, S4’s comment could not have a chilling effect on the EEO process. We disagree. The anti- retaliation provisions of Title VII encompass statements that are reasonably likely to deter a reasonable employee from engaging in protected activity. There is no requirement that a supervisor must pressure a complainant to drop an EEO complaint or that a supervisor’s statement must be hostile or critical to have a chilling effect. Furthermore, in explaining why he made the statement in question to Complainant, S4 stated, “Any time a subordinate has a problem, we have always discussed that we try to resolve it at the lowest possible level prior to taking it to the next level. If there is a complaint about a supervisor, you go to a manager, and then to the DAFSD, or EEO. We encourage officers to address complaints at the lowest possible level, before escalating it to a higher officer or EEO.” ROI at 125. We note that there is no requirement under 29 C.F.R. Part 1614 that employees must approach a supervisor or manager before raising an EEO complaint. However, because the record reflects that Complainant indicated that he may not have pursued an EEO complaint if he had known how easy the resolution would be, immediately before S4’s alleged statement, the AJ must assess the credibility of both Complainant and S4 at a hearing. The AJ found that, even if S2 made the comment about Complainant having a target on his back, Complainant failed to tie the comment to his EEO activity, as the comment did not, on its face, discourage an employee from engaging in protected activity. However, in determining that Complainant failed to tie S2’s comment to his protected activity, we find that the AJ improperly weighed the evidence. Complainant alleged that, before making the statement that he should be more careful because of the target on his back, S2 said, “How dare you file a discrimination complaint.” The AJ seemed to discredit Complainant’s statement, which was consistent in his investigative affidavit and in his deposition, because he did not specifically cite this comment in his formal complaint or address it with the EEO Counselor. 2020001742 9 The AJ further found that, “In the context of a heated exchange about performance, it is logical to conclude that [S2] told Complainant how dare he take that tone with her, not ‘how dare he file a discrimination complaint.’” AJD at 9. In reaching this conclusion, the AJ appears to be finding S4’s version of events more credible than Complainant’s. The AJ also concluded that, because Complainant told S2 and S4 on January 11, 2018, that he had filed an EEO complaint, any comment by S2 about Complainant’s EEO complaint would have likely occurred on that date. In doing so, the AJ assumed that, if S2 made a comment to this effect, she did so after the meeting where Complainant revealed his EEO activity and S4 told him he should have approached management before filing an EEO complaint. However, there are several discrepancies in the record regarding the timeline of the meetings and the alleged comments.3 In Complainant’s EEO complaint, he stated that S2 threatened him with disciplinary actions and told him he “should be more careful now that [he had] a target on [his] back.” ROI at 18-19. In his investigative affidavit, Complainant provided few specific dates, but he stated, “I believe the meeting with [S2] and [S4] took place on or about January 24, 2018.” ROI at 59, 70. In his deposition, Complainant stated that S4 made the comment about approaching management before filing an EEO complaint on January 24, 2018, the same day S2 asked him, “How dare you file a racial complaint” and told him that he had a target on his back. Agency Motion for Summary Judgment, Ex. A at 9. S2 stated in her investigative affidavit that she met with Complainant and S4 on January 11, 2018, and the record contains a January 26, 2018, memorandum to file stating that S2 interviewed Complainant on January 11, 2018. ROI at 87, 251. In the same January 26, 2018, memorandum to file, S2 stated that she had a follow up meeting with Complainant and S4 on January 25, 2018. ROI at 253. However, the record also contains a January 25, 2018, email from S2 to herself, stating that she met with Complainant and S4 on January 24, 2018. ROI at 255. In her deposition, S2 stated that the meeting took place on January 24, 2018. Complainant Response to Motion for Summary Judgment, Ex. E at 15, 24. If Complainant referenced his EEO activity at the January 24 or 25 meeting and S4 stated at the same meeting that Complainant should have come to management before filing an EEO complaint, this would undermine the AJ’s conclusion that it was unlikely that S2 would make remarks referencing Complainant’s protected activity at a different meeting than when Complainant revealed his protected activity and S4 made a comment about it. We note that the hearing process is intended to be an extension of the investigative process, designed to ensure that the parties have "a fair and reasonable opportunity to explain and supplement the record and, in appropriate instances, to examine and cross-examine witnesses." See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD- 110), 7-1 (Aug. 5, 2015); see also 29 C.F.R. § 1614.109(e). “Truncation of this process, while material facts are still in dispute and the credibility of witnesses is still ripe for challenge, improperly deprives Complainant of a full and fair investigation of her claims.” Bang v. U.S. Postal Serv., EEOC Appeal No. 01961575 (March 26, 1998). See also Peavley v. U.S. Postal 3 Furthermore, even if Complainant discussed his EEO activity on January 11, 2018, and S2 made the alleged comment on January 24 or 25, 2018, a comment made only 13 or 14 days later would not be so far removed in time that it could not raise an inference of reprisal. 2020001742 10 Serv., EEOC Request No. 05950628 (October 31, 1996); Chronister v. U.S. Postal Serv., EEOC Request No. 05940578 (April 25, 1995). In summary, there are simply too many unresolved issues that require further development of the record and assessment as to the credibility of S2, S4, and Complainant at hearing. Therefore, judgment as a matter of law for the Agency should not have been granted as to these claims. Disparate Treatment - Allegations (1) and (2) 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). He must generally 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. 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); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). The Agency’s legitimate, nondiscriminatory reason for temporarily restricting Complainant from working the exit lane in January 20184 was that L2 overheard female contractors complaining that Complainant had made them uncomfortable by giving them his phone number and inviting them over to his house. As evidence of pretext, Complainant stated that he was the only Mexican-American employee working on his shift and that most of the other employees were younger than him. We find that this is insufficient to establish pretext for discrimination by preponderant evidence. Harassment - Allegations (1) and (2) To establish a claim of harassment a 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 4 The record reflects that the restriction was temporary. When S2 learned about L2 restricting Complainant from working certain positions in January 2018 because of concerns about his behavior towards the female contractors, she directed L2 that Complainant should work all of the positions in the rotation and that, in the future, he should address any employee behavior concerns directly. 2020001742 11 liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). Regarding Complainant’s allegation that he was humiliated in front of his peers, Complainant alleged that, in January 2018, he would be tapped out by a coworker immediately after rotating to the exit lane position. Complainant also alleged that L1 told him that apparently S1 did not want him to work at the exit lane. We find that there is no evident connection between the alleged harassment and Complainant’s membership in any protected class. Moreover, the alleged harassment is insufficiently severe or pervasive to constitute a hostile work environment. CONCLUSION Therefore, after a careful review of the record, including Complainant's arguments on appeal, the Agency's response, and arguments and evidence not specifically discussed in this decision, the Commission AFFIRMS in part and REVERSES in part the Agency's final action and REMANDS the matter to the Agency for further processing in accordance with this decision and the ORDER below. ORDER The Agency is directed to submit a copy of the complaint file to the Hearings Unit of the EEOC’s Chicago District Office within fifteen (15) calendar days of the date this decision is issued. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall hold a hearing on allegations (3), (4), and (5) and issue a decision in accordance with 29 C.F.R. § 1614.109. The Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. The Agency is further directed to submit a compliance report in accordance with the statement entitled “Implementation of the Commission’s Decision.” IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). 2020001742 12 The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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 2020001742 13 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 (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. 2020001742 14 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 September 13, 2021 Date
