[Redacted], Sherman H., 1 Complainant,v.John Ryder, Chair, Tennessee Valley Authority, Agency.

Equal Employment Opportunity Commission

Jun 7, 2021

Appeal No. 2021000039 (E.E.O.C. Jun. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sherman H.,1 Complainant, v. John Ryder, Chair, Tennessee Valley Authority, Agency. Appeal No. 2021000039 Hearing No. 420-2020-00027X Agency No. TVA-2019-0055 DECISION On September 28, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 20, 2020 final action concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as an Environmental Technician (contractor) at the Agency’s Environmental Field Services in Muscle Shoals, Alabama. On April 4, 2019, Complainant filed a formal EEO complaint alleging the Agency discriminated against him on based on race (African-American), sex (male), religion (Christian/Ordained Baptist preacher), and age (over 40) when: a. beginning in October 2014, he was subjected to harassment; and b. on or about January 25, 2019, he was removed from his TVA assignment. 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. 2021000039 2 After its investigation of the complaint, the Agency provided Complainant with a copy of the reports 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. The Agency submitted a motion for a decision without a hearing. Complainant responded to the motion. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its final action 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. To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. At the time of events at issue, Complainant had worked as an Environmental Technician in Muscle Shoals for approximately five years. Complainant had worked with a Co-worker (“CW1”) for approximately four years. Prior to working for the Agency, Complainant and CW1 also attended the same community college program together. The Principal Program Manager for the testing in the Environmental Field Services (EFS) Group was responsible for directing Complainant’s work while on contract with the Agency. While the Principal Program Manager was directing Complainant’s work, Complainant reported “on paper” to the Manager of Environmental Services. Complainant stated that he treated CW1 “like she was a little daughter” and anytime he felt she did a good job on a work assignment he “would always compliment her” and “say good job. Now do you want to get married?” Complainant also stated that “for four years [CW1] ha[d] always said ‘no.’” Complainant stated that December 6, 2018, he and CW1 were working on a difficult work assignment that went well. He thanked CW1 for her work, and then asked, “…now do you want to get married?” 2021000039 3 Complainant stated that he would often ask her this question for the past year years but this time she replied “maybe.” Complainant further stated, “and I was standing approximately five feet from her and we were talking there at the boat, I said ‘well, alright, if I grab you, don’t holler.’” Complainant stated that CW1 did not say anything. Furthermore, Complainant claimed that CW1 never gave him any idea that she perceived his comment as inappropriate or offensive. CW1 discussed the December 6, 2018 incident as well as other incidents between her and Complainant with another co-worker (“CW2”), who then reported his concerns about Complainant’s behavior toward CW1 to the Principal Program Manager. The Principal Program Manager (“PP Manager”) (Caucasian, male, over 40, Christian) stated that after CW2 shared his concerns about Complainant and CW1, he followed up with CW1. CW1 confirmed that on December 6, 2018, Complainant had said to her “something akin to ‘Don’t scream if I grab you. You might like it.” She also reported an earlier incident in which Complainant explained that he had mouthwash in his tool bag “in case there would be some kissing.” Thereafter, PP Manager met with other co-workers that described concerns with Complainant’s workplace behavior. The record contains a copy of the PP Manager’s letter dated January 11, 2019 to the Manager of Environmental Services (“Manager”). Therein, the PP Manager stated “as mentioned earlier, the issues fall into two categories: 1) a lack of common courtesy and respect toward co-workers, and 2) making inappropriate/unwanted comments to female co- workers. The former has become widespread throughout the EFS team, involving most of the members of our staff-aug team. The intensity seems to have risen to the point that this must be addressed directly and immediately.” In her deposition, CW1 (Caucasian, female, under 40, Catholic) testified that her work relationship with Complainant had changed over time. She stated, “it was unprofessional and quite stressful on me most days. As a female, I’m not sure why he thought he could say some of the stuff he did to me, but he made very - - he has made comments about my weight…sometimes they were, you know kind of sexual in nature or I’m not - - I just would walk away if he’d say something, just walk away and remove myself from the situation, you know his presence.” Specifically, CW1 noted that Complainant would say that her hips look good in her jeans and “the most significant comment that [Complainant] made to me that really kind of upset me was he said to me, and these are his exact words, that if he ever grabbed me up, that I shouldn’t scream because I may like it.” The Manager of Environmental Services (“Manager”) (Caucasian, male, over 40, Episcopalian) stated that he was the deciding official to terminate Complainant following the investigation into the comments that he had made to CW1. He explained that CW1 noted that Complainant made comments which she did not like, and felt it was inappropriate. The Manager further stated that there was another occasion reported by CW1 when she and Complainant were working on a boat and he asked her to get something out of his tool box. 2021000039 4 Complainant stated that CW1 went to get his toolbox and he told her that he brought his mouthwash in the box in case they planned to “some kissing later.” Prior to terminating Complainant, the Manager stated that he had a discussion with Complainant and gave him an opportunity to address the allegations against him. He expressed concerns about the allegations and “so we felt it was the right thing to do to investigate, like I said, and to learn the things. As we talked to [Complainant] about it, we told him what the claim was and he denied it.” He felt that CW1 had more credibility, “but that’s why we did the investigation. We talked to other employees. There were some things that were - - sometimes it - - he was just difficult to work with. People said he had a, quote, my way or the highway attitude.” The Manager noted that one employee mentioned that Complainant would leer at women, look them up and down in an obvious way and make them feel uncomfortable. He noted that management “had several kinds of different incidents like that that we heard when we interviewed folks.” Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. In essence, Complainant has produced no evidence to rebut management’s assertions that comments he made to CW1, which she characterized as inappropriate and offensive were reported to them. In addition, the evidence showed that an investigation was conducted and other employees confirmed CW1’s version of events. Complainant does not really deny making the statements. Rather, he asserts they were not intended to harass or offend CW1 and were the result of what he believed was a friendly relationship between the two of them, There is simply no evidence to support a finding that discriminatory factors played a role in management’s investigation and eventual decision to terminate Complainant. Accordingly, we AFFIRM the Agency’s final action adopting the AJ’s decision without a hearing, 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. 2021000039 5 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. 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. 2021000039 6 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 June 7, 2021 Date