0120162405
05-02-2018
Salvatore K.,1 Complainant, v. Timothy O. Horne, Acting Administrator, General Services Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Salvatore K.,1
Complainant,
v.
Timothy O. Horne,
Acting Administrator,
General Services Administration,
Agency.
Appeal No. 0120162405
Hearing No. 570-2015-00891X
Agency No. GSA-14-NCR-WP-0107
DECISION
On July 13, 2016, 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 June 6, 2016, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Electronics Technician, GS-0856-10 at the Agency's Public Buildings Service, Special Service Center, Office of Facilities Management facility in Landover, Maryland.
On August 2, 2014, Complainant filed an EEO complaint alleging that the Agency subjected him to harassment on the bases of race (Black) and sex (male). In support of his claim of harassment, Complainant alleged that the following events occurred:
1. On January 3, 2012, the team lead (Team Lead, African-American male) told Complainant to stay in the shop because Complainant did not know his job.
2. On January 4, 2012, he was instructed to drive a separate vehicle to a jobsite and he was told that he had a slow mind.
3. On January 5, 2012, the Team Lead criticized Complainant's work performance in a staff meeting and told him no one wanted to ride with him.
4. On January 14, 2012, when he arrived at the worksite, Complainant was informed that he could not go into the switch gear because he would hurt someone.
5. On January 19, 2012, he was denied the opportunity to work overtime and the Team Lead stated that Complainant did not know enough to work on the project.
6. On March 1, 2012, the Team Lead instructed Complainant to get his head out of the locker after he stated that Complainant did not complete a project fast enough.
7. On March 22, 2012, the Team Lead told Complainant in a harsh manner that he was not going to the switch shop.
8. On May 2, 2012, while he was preparing to go into the field, Complainant was instructed to stay in the shop by the Team Lead.
9. On August 16, 2012, the Team Lead questioned Complainant's knowledge of testing network protectors, after describing the process, he stated in front of Complainant's colleague that Complainant did not know what he was talking about and instructed him to stay in the shop.
10. On October 11, 2012, the Team Lead left Complainant at the office and he was instructed to get another vehicle and meet his colleagues at the location.
11. From April 28, 2014, through June 27, 2014, the Team Lead had spoken to Complainant in harsh tones, failed to instruct him on his work assignments, ordered him to leave the job site and return to the office and told his supervisor (Supervisor, African-American male) that Complainant did not know his job.
At the conclusion of 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his request. Consequently, 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.
Complainant appealed. The Agency requested that the Commission affirm its final decision.
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, � 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").
In his formal complaint, Complainant alleged that the Team Lead and the Supervisor engaged in conduct to isolate him and subject him to public humiliation. In support of his claim, Complainant alleged a series of incidents from 2011 through 2014 which he believed created a hostile work environment. A hostile work environment is an amalgamation of incidents that "collectively constitute one unlawful employment practice." National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002) (quotations omitted). Unlike discrete acts, the incidents that comprise a hostile work environment claim "cannot be said to occur on any particular day" and by their "very nature, involve repeated conduct." Id. at 115.
To establish a claim of hostile work environment harassment, Complainant must show that: (1) he is a member of 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 the 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 employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. EEOC Enforcement Guidance on Harris v. Forklift Systems. Inc. at 6, 9 (Mar. 8, 1994).
A single incident or group of isolated incidents will not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17 (1993).
Upon review of the record, we find that Complainant alleged a series of events and actions taken by the Team Lead. For example, Complainant indicated that the Team Lead told him did not know his job or challenged his skills, made comments about his driving or had him drive by himself on assignments, instructed to stay in the shop, and spoke to Complainant in harsh tones in front of his colleagues. We note that Complainant stated in his affidavit that he had no evidence of sex-based harassment. However, he asserted that the Team Lead never treated other Hispanic employees in the same harsh manner.
In response, the Team Lead challenged the events listed by Complainant. He noted that on several occasions, Complainant arrived at work after employees had left in Agency vehicles while on assignments. As such, Complainant had to drive by himself. The Team Lead also indicated that some of the alleged incidents could not have occurred for he was out on leave for some of the events. The Team Lead averred that Complainant had difficulty distinguishing between voltages which was related to his position. As such, the Team Lead asserted that he needed to keep Complainant in the shop. The Team Lead also indicated that he did not have the authority to deny Complainant overtime. Finally, in sum, the Team Lead denied that the alleged events occurred because of Complainant's race. The other witnesses contacted during the investigation noted that Complainant was spoken to in a harsh manner. However, they did not support Complainant's assertions that the events occurred because of his race.
Based on a review of the record and the totality of the circumstances, we find that Complainant has not established that the alleged events constituted a hostile work environment in violation of Title VII. Further, Complainant has not provided any evidence beyond his bald assertion that he was subject to harassment based on his race. Therefore, we conclude that Complainant has not shown that he was subjected to unlawful harassment as alleged.
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.
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.
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's signature
Carlton M. Hadden, Director
Office of Federal Operations
May 2, 2018
__________________
Date
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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