0120110654
12-06-2011
Ronald E. Hodges, Complainant, v. Sheila C. Bair, Chairman, Federal Deposit Insurance Corporation, Agency.
Ronald E. Hodges,
Complainant,
v.
Sheila C. Bair,
Chairman,
Federal Deposit Insurance Corporation,
Agency.
Appeal No. 0120110654
Agency No. FDICEO - 100023
DECISION
Complainant filed a timely appeal with this Commission from a final Agency
decision (FAD) dated September 13, 2010, dismissing his complaint of
unlawful 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
At the time of events giving rise to this complaint, Complainant worked
as a Resolutions & Receiverships Specialist, CG-14 at the Agency’s
Jacksonville, Florida Satellite Office (on site closed bank) in Miami,
Florida.
On July 20, 2010, he filed a formal complaint alleging that the Agency
subjected him to discrimination on the basis of race (African-American)
when:
on or around May 25, 2010, another Resolutions & Receiverships Specialist
(RRS), used the expression “tar baby” twice to describe a bank’s
problems with assets which required him to visit the site every 60
days. Complainant then requested Co-worker 1 to join the discussion as
a witness and asked RRS to repeat what he just said, and RRS used the
expression “tar baby” three more times.
Complainant contended in his complaint that the term “tar baby”
is a historical term, which has been used by Caucasians to describe
horrific acts of violence against slaves and other African-Americans,
and is a racial slur.
According to the counselor’s report, RRS admitted he used the
expression “tar baby” and did not realize it was a racial slur.
He stated he has seen the expression used to describe a problem loan
situation that was “sticky” to the point that the lender would have
difficulty getting out of the problem. He stated that had Complainant
or Co-worker 1 indicated that what he was saying was offensive, he would
have immediately stopped and apologized.
The Agency dismissed the complaint for failure to state a claim.
29 C.F.R. § 1614.107(a)(1). Citing various court cases, it reasoned
that the complaint did not rise to the level of actionable harassment.
ANALYSIS AND FINDINGS
On appeal Complainant argues that RRS did not stop his harassment with
the May 25, 2010, incident, but also reported to Agency management a
false sexual harassment allegation against him by a female Resolution
Assistance Coordinator. Complainant raised this for the first time
after he received the FAD. RRS also separately mentioned this to the EEO
counselor, asserting the timing of Complainant’s claim was interesting.
Specifically, he stated that on May 26, 2010, he was approached by an
on-site female contractor who asked how to file a sexual harassment
complaint against the Agency, claiming Complainant and Co-worker 1 were
perpetrators. RRS told the EEO counselor that he advised the female
contractor to contact her employer’s human resources department,
and that he reported the matter to Agency management.
In opposition to the appeal, the Agency argues that Complainant did
not serve a copy of his appeal statement to the Agency, as required.
Complainant did not indicate in his appeal statement that he provided
a copy to the Agency.
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993),
the Supreme Court reaffirmed the holding of Meritor Savings Bank
v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if
it is sufficiently severe or pervasive to alter the conditions of the
complainant's employment. The Court explained that an "objectively
hostile or abusive work environment [is created when] a reasonable person
would find [it] hostile or abusive” and the complainant subjectively
perceives it as such. Harris, at 21-22. Thus, not all claims of
harassment are actionable. Where a complaint does not challenge an
agency action or inaction regarding a specific term, condition or
privilege of employment, a claim of harassment is actionable only if,
allegedly, the harassment to which the complainant has been subjected
was sufficiently severe or pervasive to alter the conditions of the
complainant's employment. Offhand comments, and isolated incidents
(unless extremely serious) will not amount to discriminatory changes in
the terms and conditions of employment. Faragher v. City of Boca Raton,
524 U.S. 775, 787 (1998) (citations omitted).
In the instant case, the record supports the Agency’s conclusion that
while the expression used by RRS was inappropriate in the workplace, it
was isolated and not repeated. RRS’s admitted use of the expression
“tar baby” was isolated to a single conversation and was used to
describe problem bank assets. He claimed to not know the expression was
racially offensive. While inappropriate, this one conversation did not
rise to the level of actionable harassment, i.e., was not sufficiently
severe or pervasive to alter the conditions of Complainant’s
employment. See Robinson v. Department of the Army, 2009 WL 1175331
(M.D.N.C. 2009) (plaintiff’s acting supervisor used the expression
“tar baby” in a staff meeting in reference to a proposed mechanical
services program, i.e., “once you get your hands on that tar baby,
you can’t let it go.” The supervisor stated he did not know the
expression was racially derogative. The Court found that use of this
expression did not constitute an abusive environment and hence was
not harassment).
Complainant’s claim about RRS reporting to management a female
contractor’s false accusation of sexual harassment was not raised
until after the FAD was issued, and we have some reservations addressing
the matter because there is no evidence Complainant submitted a copy
of his appeal statement to the Agency. Nevertheless, we will do so.
While not directly on point, the Commission has held that to allow the
processing of a complaint regarding the participation of employees in the
investigation of another EEO complaint would have a chilling effect on
the processing of EEO complaints. Calloway v. Department of the Army,
EEOC Appeal No. 01943406 (July 15, 1994). We find that RRS’s actions
did not rise to the level of actionable harassment.
The Agency’s dismissal is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999).
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.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time limits
as stated in the paragraph above (“Right to File a Civil Action”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 6, 2011
__________________
Date
2
0120110654
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110654