Reginald K., Complainant,v.Janet Yellen, Chair, Federal Reserve Board of Governors, Agency.

Equal Employment Opportunity Commission

Feb 19, 2016

0120143055 (E.E.O.C. Feb. 19, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Reginald K.,
Complainant,

v.

Janet Yellen,
Chair,
Federal Reserve Board of Governors,
Agency.

Appeal No. 0120143055

Agency No. FRB-EEO-13-11-005

DECISION

Complainant filed an appeal from the Agency’s August 11, 2014 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

Complainant worked as a Senior Law Enforcement Officer at the Agency’s Headquarters in
Washington, DC. On November 25, 2013, he filed an EEO complaint in which he alleged that
on September 20, 2013, the Assistant Chief of the Law Enforcement Unit (AC) discriminated
against him and subjected him to a hostile work environment because of his race (Asian) and
national origin (Chinese) by directing that he be counseled by his Shift Commander (SC) for
leaning against a bollard and resting while on duty and standing on post. Investigative Report
(IR) 23. The AC and the SC both averred that when the AC observed Complainant in a posture
that reflected lack of alertness, she directed the SC to talk to him about it, which the SC did.
Both characterized the conversation as nothing more than a verbal conversation. IR 33-34, 37.
Complainant himself admitted that this is what had taken place. IR 29.

At the conclusion of the investigation, the Agency notified Complainant of his right to request a
hearing before an Equal Employment Opportunity Commission Administrative Judge. When
1This 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.

0120143055

2
Complainant failed to respond within the prescribed time frame, the Agency issued a final
decision on the merits of the complaint pursuant to 29 C.F.R. § 1614.110(b). The decision
concluded that Complainant failed to prove that the Agency subjected him to discrimination and
discriminatory harassment as alleged.

ANALYSIS AND FINDINGS

The Commission cannot second-guess an Agency’s personnel decisions unless there is evidence
of a discriminatory motivation on the part of the officials responsible for those decisions. See
Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259 (1981). Therefore, in
order to prevail on his claims of hostile environment and disparate treatment, Complainant would
have to prove, by a preponderance of the evidence, that the AC and the SC were motivated by
unlawful considerations of his race and national origin in connection with the incident that
occurred on September 20, 2013. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.
133, 143 (2000); Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993).

In circumstantial-evidence cases such as this, Complainant can prove the existence of an
unlawful motivation by presenting documents or sworn testimony showing that the reason
articulated by the AC and the SC for their actions are pretextual, i.e., not the real reason but
rather a cover for discrimination on the bases of race and national origin. St. Mary’s Honor
Society v. Hicks, 509 U.S. 502, 515 (1993) citing Burdine, 450 U.S. at 253. Proof of pretext can
take the form of discriminatory statements or past personal treatment attributable to the AC,
comparative or statistical data showing differences in treatment across racial or national origin
lines, unequal application of Agency policy, deviations from standard procedures without
explanation or justification, or inadequately explained inconsistencies in the evidentiary record.
Mellissa F. v. United States Postal Service, EEOC Appeal No. 0120141697 (November 12,
2015).

Here, the only evidence of pretext that Complainant puts forward is his own assertion that the
AC does not like Asians. IR 29. Beyond that, Complainant has not submitted any sworn
statements from other witnesses or documents that contradict the explanation provided by the
AC and the SC or which call their veracity into question. We therefore agree with the Agency
that Complainant failed to establish the existence of an unlawful motive on the part of the AC or
the SC in connection with the incident at issue in this complaint. Moreover, Complainant’s
entire claim consists of a single work-related admonishment that by definition is neither severe
nor pervasive enough to rise to the level of harassment. See Complainant v. United States
Postal Service, EEOC Appeal No. 0120131010 (April 15, 2015); Complainant v. Department of
Agriculture, EEOC Appeal No. 0120132282 (June 13, 2014).

0120143055

3
CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by mail within five days of the
expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition
must also include proof of service on the other party.

Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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.

0120143055

4

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

February 19, 2016
Date