[Redacted], Tyree B., 1 Complainant,v.Xavier Becerra, Secretary, Department of Health and Human Services (Indian Health Service), Agency.

Equal Employment Opportunity Commission

Jul 12, 2021

Appeal No. 2020002800 (E.E.O.C. Jul. 12, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tyree B.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services (Indian Health Service), Agency. Appeal No. 2020002800 Agency No. HHS-IHS-0458-2017 DECISION On March 16, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 12, 2020 final decision 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. BACKGROUND During the relevant period, Complainant worked as an Information Technology (IT) Specialist at the Agency’s Indian Health Service (HIS), Great Plains Area, Cheyenne River Service Unit in Eagle Butte, South Dakota. On February 2, 2018, Complainant filed a formal complaint. Therein, Complainant claimed that the Agency discriminated against him based on sex (male), disability, and in reprisal for engaging in protected EEO activity when: 1. since September 2012, and continuing to the present, the Supervisory IT Specialist (S1) has subjected him to verbal threats, inappropriate statements, and inference with job duties when S1 took various actions which included, but were not limited to, the following matters: 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. 2020002800 2 a. On September 24, 2012, S1 asked Complainant if it was a “man” and not a “cute girl,” would Complainant assist a co-worker with her ISSA and domain account in such a scenario. b. On November 13, 2013, S1 stated Complainant was “hanging out with a co- worker a lot” and then inquired if Complainant “had punched her in the bloomers.” c. On September 29, 2014, S1, in response to another employee having made changes to the server without notification, stated to Complainant that he “should go down and fight him, but that ‘retards’ are strong.” d. On March 15, 2016, Complainant told S1 that he was somewhat frustrated with a co-worker for not giving them an update on the servers on which Complainant was working on. S1 told Complainant that he had better be careful because the co-worker has that “retard” strength. e. On December 8 and 12, 2016, S1 referred to another co-worker as Complainant’s wife. f. On March 23, 2017, S1 was joking about a co-worker’s accident in his cubicle and referred to it as “[N-word] Shit.” g. On April 5, 2017, S1 told Complainant during an IT meeting that they might have to change his tour of duty back from four 10-hours days to five 8-hour days. h. On January 18, 2017, S1 threatened to take away Complainant’s alternate work schedule (AWS) but never followed through with the threat. i. On August 2, 2017, S1 stated that maybe he needed to change Complainant’s tour back to working Fridays. j. On April 27, 2017, S1 stated that a co-worker deserves a punch right in the “fucking mouth.” k. On May 23, 2017, S1 bet someone a twelve pack of beer that he could fire an employee. l. On August 2, 2017, S1 asked Complainant if he practiced mouth to mouth on the girls, saying it is not mouth-to-mouth if you use tongue. This statement was made after S1 returned from taking a training course on CPR. 2020002800 3 m. On August 29, 2017, S1 told Complainant that he was just talking to a co- worker and he said the co-worker wanted to talk to Complainant because she needed a ride to somewhere that evening. Complainant asked S1 for what and he said she left her pickup truck at Complainant’s place the night before. Complainant denied it, and S1 said “Smile, if it is true.” n. On August 29, 2017, S1 stated that if they are saying he is a bully, they have not seen anything yet. o. On September 5, 2017, S1 asked Complainant if a co-worker was crackly, to which Complainant replied “No.” S1 then stated it is probably because she got dusted off that weekend. 2. On August 23, 2017, S1 stated if Complainant and two other co-workers keep taking leave, there will be three vacant IT positions. 3. On September 19, 2017, Complainant learned via email from Witness-4 that S1 had removed him from all of the IT Security Groups from Eagle Butte. 4. On September 22, 2017, Complainant learned S1 removed his building access after he tried and failed to successfully gain access to a building. 5. On September 29, 2017, Complainant learned S1 made the statement to co-workers that there was a problem with employees having elevated privileges (increased security levels) because of Complainant which was not true. 6. Since October 30, 2017, Complainant has been given no work assignments, which has taken a toll on Complainant physically and mentally. 7. On March 1, 2018, Complainant confirmed with RMO-3 that S1 had stated that he was afraid of Complainant because he owned firearms. 8. On March 15, 2018, Complainant obtained a temporary restraining order against S1 with the Cheyenne River Sioux Tribal Court. 9. On March 29, 2018, the Cheyenne River Sioux Tribal Court granted a one-year “no contact” order between S1 and Complainant.2 After an investigation, Complainant was provided a copy of Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. 2 The record reflects that claims 7 - 9 were later amended to the instant formal complaint. 2020002800 4 In accordance with Complainant’s request, the Agency issued a final decision on February 12, 2020, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. Complainant did not submit a timely brief on appeal. ANALYSIS AND FINDINGS To establish a claim of hostile environment harassment, 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 (March 8, 1994). In other words, to prove his discriminatory 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 - in this case, because he was male, had a disability or engaged in prior EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Retaliation Claim With regard to his retaliation claim, Complainant based it on his pursuit of the instant EEO complaint. The record shows that Complainant requested EEO counseling alleging harassment by S1 on September 5, 2017, but did not have his initial interview with a counselor until November 28, 2017. Complainant filed his formal complaint on February 2, 2018. Although Complainant conceded he did not report the majority of the incidents of harassment to upper- level management for fear of retaliation, he named his second and third level supervisors in his complaint for not taking action to stop the harassment. We conclude that Complainant has not established that unlawful retaliatory animus resulted in the incidents that form his harassment complaint. We note that virtually all of the alleged incidents, with the exception of allegation 7 (S1 raised concerns about Complainant owning firearms), occurred prior to Complainant beginning EEO counseling and there is no evidence that any involved management official was aware of his desire for EEO counseling before it actually started. Therefore, there is simply no evidence to connect Complainant’s pursuit of the instant EEO complaint with the alleged harassment. 2020002800 5 Disability Discrimination Claim Complainant stated he has been diagnosed with Right Porencephalic Cyst (neurological disorder of the central nervous system characterized by cysts or cavities within the cerebral hemisphere), Left Side Spastic Hemiplegia (neuromuscular condition of spasticity that results in the muscles on one side of the body being in a constant state of contraction), and Left Side Hemiparesis (weakness of one entire side of the body), since birth. He also claimed he has suffered from insomnia (10 years), and depression (November 2017). Complainant indicated the Right Porencephalic Cyst causes him to walk with the help of an ankle-foot orthotic and left wrist fraction contracture, and he takes Trazadone nightly for insomnia, which sometimes leaves him tired in the mornings. Complainant said he sees his doctor every three years for the Right Porencephalic Cyst and every six months for insomnia. He claimed his stress has increased from workplace harassment, which caused his insomnia to worsen and as a result, he developed depression (November 2017), for which he sees a Counselor biweekly. Complainant alleged he informed S1 of the Right Porencephalic Cyst when he began working with the Agency in September 2012, and his insomnia when he requested an alternate work schedule. Complainant stated he informed S2 of the depression, via email. Again, there is simply no evidence presented to support a finding that the alleged harassment was motivated by Complainant’s medical conditions. While S1 discussed some tardiness by Complainant and the need to reassess his schedule, there is no evidence that Complainant’s schedule was actually changed or that any other adverse action was taken because of attendance issues related to his medical conditions. Moreover, there is no evidence that Complainant requested a reasonable accommodation for his disabilities related to his attendance, tour of duty, or any other issue. In sum, there is simply no connection shown between Complainant’s disabilities and the alleged harassment. Sex Discrimination Claim S1 (male) stated that Complainant was one of the four employees in the IT department that he supervised. In his statement provided during the investigation, S1 denied all the allegations regarding his use of harassing or offensive language. Regarding allegations 1(g), 1(h) and 1(i), S1 stated Complainant was on a 4/10 work schedule that was approved in 2012, and this type of compressed tour of duty needed to be approved annually. He stated that based on Complainant’s tardiness and attendance issues, he informed Complainant that management might need to reassess whether or not Complainant should continue on his current 4/10 schedule. However, there is no evidence that Complainant’s schedule was actually changed. With respect to claims 3 and 5, the record shows that S1 did remove Complainant from all of the Eagle Butte IT Security Groups, as well as his building access when Complainant went on a detail. However, Complainant’s third level supervisor (S3) stated that this matter was quickly corrected. 2020002800 6 Complainant’s second level supervisor (S2) (male) confirmed that once he was made aware that Complainant’s building access was taken away, he instructed the supervisor that it was only a detail and his access to the building needed to be restored. Regarding claim 7, Complainant alleged that on March 1, 2018, he confirmed with S3 that S1 had stated that he was afraid of Complainant because he owned firearms. S3 stated he recalled hearing concerns from S1. S3 stated, however, he had not been made aware of any related threats made by Complainant. S2 stated he discussed the matter with Complainant and was persuaded that he never brings firearms to work, and that S1 should not be worried about the issue. Regarding claims 8 and 9, on March 15, 2018, Complainant obtained a temporary restraining order against S1 with the Cheyenne River Sioux Tribal Court and, on March 29, 2018, the Cheyenne River Sioux Tribal Court granted a one year “no contact” order between S1 and Complainant. Agency management indicated that even though the restraining order was not enforceable on IHS grounds, action was taken to ensure the supervisor and Complainant did not interact in any capacity. The image which emerges from considering the totality of the record is that there were conflicts and tensions with S1’s management style and behavior that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against adverse treatment due simply to a supervisor's personality quirks or autocratic attitude. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002). See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981) (“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). S1 denies making any of the alleged offending comments and there were no other witnesses to support Complainant’s allegations. Moreover, for the most part, Complainant never complained to upper level management about the alleged harassment. However, even assuming S1 made at least some of the alleged unprofessional, boorish and offending comments, the discrimination statutes prohibit only harassing behavior that is directed at an employee because of his or her protected basis (in this case, Complainant’s sex). Here, the preponderance of the evidence does not establish that S1, even assuming the allegations are true, was motivated by Complainant’s sex. We do acknowledge that several comments Complainant alleges were made by S1 were of a sexist nature - comments about Complainant favoring or being interested in several female coworkers. However, these were isolated incidents separated by significant periods of time. With regard to his tour of duty, the record shows no change was actually made, his access to the IT security groups and building were quickly restored, and nothing came of the concern about Complainant’s ownership of firearms. In sum, Complainant’s claim of harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken were motivated by his protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). 2020002800 7 While concluding that Complainant has not proven S1’s actions occurred because of his sex, disability or retaliatory animus, we caution the Agency to more closely examine S1’s conduct in general. If he is, in fact, engaging in a pattern of using offensive language, the Agency has a duty to take proactive steps to prevent S1, as a supervisor, from engaging in escalating offensive behavior such that it eventually creates a hostile work environment for his employees. We note that the Tribal Court determined there was sufficient concerns with S1’s conduct to enter the “no contact” order. The Agency should examine S1’s behavior as a supervisor as a preventative measure as part of it required anti-harassment efforts. CONCLUSION After a review of the record in its entirety, including considerations of all statements on appeal, we AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that sex or disability discrimination or unlawful retaliation occurred. 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. 2020002800 8 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. 2020002800 9 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 July 12, 2021 Date