Ryan L.,1 Complainant,v.Mick Mulvaney, Acting Director, Consumer Financial Protection Bureau, Agency.

Equal Employment Opportunity Commission

Jul 17, 2018

0120160538 (E.E.O.C. Jul. 17, 2018)

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

Ryan L.,1
Complainant,

v.

Mick Mulvaney,
Acting Director,
Consumer Financial Protection Bureau,
Agency.

Appeal No. 0120160538

Agency No. CFPB-2015-0011-F

DECISION

On November 2, 2015, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
October 19, 2015, 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. 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 decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Large Bank Examiner
with the Agency’s Supervision, Enforcement, and Fair Lending (SEFL) Southeast Region, located
in Jacksonville, Florida. On January 26, 2015, Complainant filed an EEO complaint alleging that
the Agency subjected him to a hostile work environment based on race (“GLBT,” Caucasian,
Native American), sex (sex stereotyping and sexual orientation), color (unspecified), and age (44)
when:

(a) in September 2014, an Enforcement Attorney, SEFL, Office of Enforcement (C1)
screamed at Complainant during a conference call and accused Complainant of
mistreating women of color;

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.
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(b) in September 2014, Complainant learned that C1 said in reference to him: “Love the
sinner, hate the sin,” and that his “lifestyle” gave her pause with regard to his union
leadership role;

(c) in October 2014, C1 falsely accused Complainant of engaging in sex discrimination
when he capitalized words in an email message;

(d) in or around October 2014, Complainant informed the Senior Advisor, Office of Human
Capital, Division of Operations (C2), and the Acting Lead for Employee and Labor
Relations, Office of Human Capital, Division of Operations (C3), of continued harassment
by C1 and informed them of C1’s various statements that Complainant was “abusive” and
“mistreated” women;

(e) in September 2014 and October 2014, C1 stated to an unidentified official or
unidentified officials in the Agency’s Office of Civil Rights that Complainant was
engaging in sex discrimination; and

(f) in or around October 2014, C1 filed an unfair labor practice complaint against
Complainant claiming he removed her as union steward because she is a woman.2

The Agency dismissed claims (e) and (f). The Agency concluded that both claims (e) and (f) failed
to state a cognizable claim. See 29 C.F.R. § 1614.107(a)(1). We agree with the Agency and note
that Complainant fails to dispute the dismissal of these claims on appeal.

After the investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of his right to request a hearing before an EEOC Administrative Judge
(AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the
Agency subjected him to discrimination as alleged.

FACTUAL BACKGROUND

At the time of the events in question, Complainant was serving as President of Chapter 335,
National Treasury Employees Union (NTEU), and he spent 100% of his official time performing
union duties. Complainant asserts that C1 (Asian Indian, female, under 40) harassed him based
on sex stereotyping and sexual orientation, because he believes she has a personal issue with Gay,
Lesbian, Bisexual and Transgender (GLBT) people. The record shows that C1 has no
organizational relationship to Complainant, but served with him on the Board of Directors of
NTEU Chapter 335. C1 asserts that she has been experiencing ongoing harassment from
Complainant and his male colleagues for over a year and had filed a complaint against him.

2 During the EEO investigation, Complainant asserted that he no longer believes that C1 was
motivated by his color or age. Accordingly, this decision will not address those bases.
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Incident (a)

Complainant asserts that during a conference call on September 14, 2014, C1 “inserted herself on
the call, as she usually does” and accused the Chief Steward (CS) (male), the Chief of Staff (CoS)
(male), and Complainant of “mistreating women.” According to Complainant, C1 spoke in a
“hateful and adolescent tone several times with little or no provocation.” Complainant further
asserts that C1 continually accuses him of mistreating women because she wants to engage in work
that is beyond the scope of her position as Treasurer. Complainant claims that C1 made a similar
accusation during a Chapter meeting held in July 2014. According to Complainant, C1 physically
got out of her chair, hijacked the meeting, and verbally attacked him.

Complainant asserts that C1’s accusations have placed his job in jeopardy and places him in the
position to be scrutinized for false allegations to both management and third-party stakeholders
outside the Agency. Complainant testified further that he reported the incident to C2 and C3.
Complainant stated that he was told they could not get involved in internal union business.
Complainant believes C1 harassed him specifically because of his “GLBT race,” and because of
his sex, including sex stereotyping and sexual orientation.

C1 asserts that she never screamed at Complainant and does not recall participating in a conference
call in September 2014. C1 believes that Complainant is harassing and retaliating against her for
raising legitimate concerns about his treatment of female employees at the Agency. She explains
that Complainant has generally refused to participate in conference calls and has completely cut
out the rest of the Chapter 335 Board, including all women. She further stated that in July 2014
she attended the Chapter’s annual meeting in Washington, D.C., where at least 30-40 other
members were present. She asserts that nearly all members raised serious concerns about
Complainant’s leadership abilities. C1 also affirms that she expressed her concerns to the National
NTEU Representative (U1) (female), about the treatment of female stewards in the Chapter.
Specifically, C1 claims that Complainant has bullied and threatened her and has retaliated against
her for raising legitimate concerns about accountability, transparency, fairness, and discrimination.
C1 further asserts that she followed the anti-harassment policy by reporting the harassment directly
to Complainant at the July 2014 meeting.

C1 describes several examples of incidents where Complainant allegedly made demeaning,
pejorative, and sexist statements about women. For example, she notes that in November 2013,
after reporting to Complainant that several minority female employees in her office were receiving
failing performance ratings, he responded by stating: “You know how minority women are – they
are really loud and have an attitude,” or words to that effect. C1 also asserts that Complainant
referred to herself, a union steward (U2) (African-American, female), and the Chapter’s Field Vice
President (VP2) (Caucasian, female) as “a few louds,” stating: “I’m not going to let a few louds
hijack the union.” C1 also states that Complainant mocked and ridiculed her because of her race
and sex on September 4, 2014, when, after she expressed an interest in decision-making as a Board
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member, he referred to her as “the mighty M****”3 and told her she did not deserve “a place at
the table.” In addition, C1 states that Complainant includes only men in the decision-making
process, and that he has excluded her from phone calls and used condescending and unprofessional
language to address her. C1 further states that Complainant used the following phrases when
terminating email conversations with women: “We are finished,” “Conversation Over,” “End of
Discussion,” and “We do not need you.” C1 also asserts that when one female Board member
expressed concerns to him, Complainant said he would “chalk [it] up to [her] emotion.” She stated
that by contrast, he uses a respectful, professional tone when addressing men. C1 also notes
another incident where a female employee reported to Complainant that she was being sexually
harassed by CS, and that Complainant retaliated against her by copying, against her wishes, CS on
his emails to her.

A Compliance Examiner (C4) (Caucasian, male) testified that he has participated in various
conference calls in which Complainant (in his capacity as a union official) and C1 were also on
the call. C4 states that C1 tends to want to take over the conference call and lead it. According to
C4, there were instances in which C1 yelled at Complainant and accused him of mistreating women
of color. However, C4 believes that the relationship between Complainant and C1 is strained due
to a personality conflict and he has no reason to believe that C1’s alleged conduct was motivated
by Complainant’s race or sexual orientation/stereotyping. The documentary evidence which
includes various emails between C1 and Complainant support C4’s position.

Incident (b)

Complainant asserts that he was told that C1 made the statement: “Love the sinner, hate the sin.”
C1 denies making this statement and asserts that she is not a Christian and terms such as “sinner”
and “sin” are not in her vernacular. In addition, she asserts that she does not ascribe to the concepts
of “sinners” and “sin” in her culture or belief system. She further states that she has never said
that Complainant’s “lifestyle” gave her pause, either. In his rebuttal testimony, Complainant also
claims that C1 said to him, “[y]ou are nice R__.4 Let’s not fight though I do think your lifestyle
makes you a weak leader.” Complainant identifies CS as a witness regarding this alleged
comment. However, there is no affidavit from CS in the record to corroborate or contradict
Complainant’s assertion.5

C1 responds by asserting that Complainant has a pattern and practice of falsely alleging that
anyone who challenges him is homophobic. For instance, she states, on August 16, 2014,
Complainant, by and through CS, posted a strange rant on the Chapter 335 blog to falsely claim
that the entire Board (consisting of four other employees) disapproved of his “lifestyle.”
Moreover, C1 affirms that she has never known anyone on the Board to ever disapprove of
Complainant’s sexual orientation. C1 further asserts that she has never had any issues with it and

3 Complainant used C1’s first name in this alleged statement.
4 Complainant’s first name is used in this alleged statement.
5 CS, who was no longer an employee at the time of the EEO investigation, did not respond to the
numerous attempts to obtain a statement and/or affidavit in this matter.
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notes that she even assisted Complainant with edits and feedback for his grievance against the
Agency in which he alleged that he was denied a promotion due to his sexual orientation. C1
maintains that she would not have agreed to assist him if she harbored prejudicial feelings against
him – nor would he have selected her to provide feedback.6

A Consumer Response Specialist and Chapter 335 steward (U3) (Caucasian, female) asserts that
she heard from other people that C1 “and other people” may have made the comment: “Love the
sinner, hate the sin.” However, she was not present when the alleged comment was made. U3
declined to identify the individuals that she says “may” have allegedly witnessed C1 making this
comment because she does not have a full recollection due to the length of time that has elapsed
since the remarks were allegedly made. U3 also states that she has no reason to believe that C1’s
alleged remarks were motivated by Complainant’s race or sexual orientation/stereotyping.
However, she states: “I believe [C1] subjected Complainant to discriminatory harassment based
on his sexual orientation given that he is a gay man.”

Incident (c)

The record shows that in an October 2014 email, C1 accused Complainant of mistreating women
because he capitalized the words “dues paying members” in an email. This email was prompted
by several earlier email exchanges regarding the question of whether Complainant was
accountable to the Chapter’s Board members. It was Complainant’s position that he was not
accountable to the Board and it was C1’s position that he was accountable to the Board.

Complainant asserts that the only reason C1 treats him differently than other leaders must be her
bias regarding GLBT individuals. Complainant asserts that C1 makes it personal and dismisses
his leadership skills even though he has been in the union for much longer. Complainant also
states that if C1 disagrees with anyone (male, female, white, black) who can make the decision,
she retaliates by claiming discrimination against women and women of color.

Incident (d)

Complainant testified that in or around October 2014, he notified C2 and C3 by email of the alleged
harassment that he was experiencing by C1. Complainant also asserts that he received a response
from the Labor Relations office advising him that the matters complained of involved Union
activity and are not covered under EEO guidelines. He states that no actions were taken because
of his notice.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b),
the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,

6 Complainant does not rebut C1’s assertions.
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§ VI.A. (Aug. 5, 2015) (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”).

To establish a claim of 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 classes; (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 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).

Therefore, in order to establish his harassment claim, Complainant must show 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. Only if Complainant
establishes both of those elements, hostility and motive, will the question of Agency liability
present itself.

The Agency argues that Incidents (a) and (c) do not rise to a cognizable claim as they describe
conduct that amounts to protected EEO activity by C1. However, we assume for the purposes of
this decision that the alleged conduct by C1 is reviewable.

Upon review of the record, we find that Complainant failed to present sufficient evidence to prove,
by a preponderance of the evidence, that C1 was motivated by Complainant’s race or sexual
orientation.7 There is corroborating documentary evidence to support C1’s assertions that her
conduct was motivated by her reasonable belief that Complainant held bias against her based on
her sex. However, there is insufficient evidence to corroborate Complainant’s allegations that C1
was biased against him because of his sexual orientation. Neither Complainant, nor his witnesses
have direct knowledge of his claim that C1 made the statement “Love the sinner, hate the sin.” In
addition, the record is devoid of corroborating documentary or testimonial evidence to support
Complainant’s assertion that C1 made the statement that Complainant’s lifestyle made him a weak
leader. As Complainant chose not to request a hearing, the Commission does not have the benefit
of an Administrative Judge’s findings of facts or credibility determinations after a hearing.

7 While Complainant claims that one of the bases of his discrimination claims is race as a member
of the LGBT community, we note that LGBT status is more accurately described as sex (sexual
orientation) rather than race.
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Therefore, the Commission can only evaluate the facts based on the weight of the evidence
presented. Accordingly, we find to the extent that C1 acted in a hostile and/or unprofessional
manner toward Complainant, such conduct was motivated by personality conflicts, including the
belief that Complainant held animus toward her because she is a woman.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision finding that Complainant
did not establish that he was discriminated against as alleged.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R.
§ 1614.403(g). The request or opposition must also include proof of service on the other party.
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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 (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, Director
Office of Federal Operations

July 17, 2018
Date