0120142580
12-09-2016
Tommie R.,1 Complainant, v. Melvin L. Watt, Director, Federal Housing Finance Agency, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Tommie R.,1
Complainant,
v.
Melvin L. Watt,
Director,
Federal Housing Finance Agency,
Agency.
Appeal No. 0120142580
Agency No. FHFA54
DECISION
Complainant filed an appeal from the Agency's June 6, 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
ISSUE PRESENTED
The issue presented is whether the Agency appropriately found that Complainant failed to prove by a preponderance of the evidence that the Agency discriminated against him on the basis of his sex or reprisal.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Student Trainee at the Agency's Facilities Operations Management facility in Washington, D.C.
On July 14, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of his sex (male) and reprisal for protected EEO activity under Title VII. He cited 11 incidents during the period September 12, 2012 to May 17, 2013, in support of his claims. The Agency restated the claims, as alleging discrimination, when:
1. On May 17, 2013, security escorted the Complainant out of the building before he completed his exit paperwork and barred him from the building;
2. On May 13, 2013, the Complainant's supervisor informed him that his last day of employment would be May 17, 2013, because the Complainant's position would not be converted from a student trainee to a permanent employee;
3. During April 2013, the Complainant received a fully successful performance rating, but was criticized in his performance evaluation meeting regarding his attendance and accomplishments report;
4. On January 29, 2013, during a staff meeting, the Complainant's supervisor stated that a sweat suit was not appropriate attire for work and referenced Complainant by name;
5. On December 4, 2012, his supervisor berated him after he asked if he could leave at his regularly schedule time of 4:30 PM the next day and responded in a threatening tone, "you do what you think you have to do for you,"
6. On September 26,2012, the Complainant provided paperwork to his supervisor for payment of classes, but learned on October 18, 2012, that payment had not been made, forcing him to pay for the classes;
7. On September 12, 2012, the Complainant met with his supervisor regarding "Attitude in the Workplace and she stated, "What are going to do for me not to target you then?"
8. On approximately September 10, 2012, the supervisor informed Complainant that he must come to work early so that he can report to his desk prior to setting up a room in the building;
9. On September 7, 2012, Complainant's supervisor sent an e-mail requesting that employees let her know by September 10, 2012 which days they could work late; and
10. On September 7, 2012, the Complainant's supervisor informed that there were rumors of an improper relationship between him and a female colleague and told Complainant that she did not want to see the female colleague on the floor visiting at his desk.
The Agency dismissed another claim (his claim #11) for failure to state a claim. He alleged that he was subjected to a hostile work environment and disparate treatment on the basis of sex when on an unspecified date, he had a verbal exchange with the named supervisor regarding his "responsibility to drive her back to the Agency's former building location and the appropriateness of his work attire."
Complainant's claims allege both disparate treatment and a hostile work environment with regard to his terms and conditions. Specifically, he claims that his supervisor changed his schedule, accused him of an improper relationship with a female employee, refused to process paperwork for his classes, made negative comments about his attire and attitude, criticized his attendance and accomplishments and had him escorted out of the building after she decided not to convert him to a permanent position.
The pertinent record reveals the following facts. During the period at issue, Complainant reported to the named RMO1. He had one encounters with the RMO prior to the time that she was appointed to serve as his supervisor. She supervised one female employee and 13 male employees, including Complainant. He was employed from July 2012 to May 2013. Complainant had served as a contractor with the Agency prior to his placement in the SCEP Program (SCEP). The SCEP Program allows students who meet the requirements to be converted to a career or career conditional appointment, but the conversion is not automatic and made at the discretion of the Agency.
The determination not to convert his position to a permanent career position was made by his immediate supervisor. He was notified that he would not be converted to a career position. He made the decision to initiate EEO contact after she had him escorted out of the building.
The record shows the following incidents leading up to the decision not to convert Complainant to a permanent career position. On September 7, 2012, Complainant's supervisor sent the employees an email requesting that employees let her know by September 10, 2012, which days they could work late. Complainant responded, but he was the last employee to respond. Before Complainant was able to send his reply, the supervisor sent out an email informing him that he was required to work late every day.
On or about that same date (September 7, 2012), Complainant's supervisor informed him that there were rumors of an improper relationship between Complainant and a female colleague. Complainant, who is married, denied having an inappropriate relationship with the female colleague. The supervisor informed Complainant that she did not want to see this female colleague on the floor visiting at his desk.
On September 10, 2012, Complainant's supervisor informed him that Complainant must come to work early so that he could report to his desk prior to going elsewhere to set up a room.
On September 12, 2012, his supervisor met with Complainant regarding his "attitude in the workplace." During the meeting, Complainant averred that the supervisor spoke to him in a condescending tone and treated him like a child. As he was leaving, Complainant let out a slight sigh "Uhm." The supervisor then told Complainant that he had not been listening and uttered her own sigh.
According to Complainant, the supervisor thereafter stated "what are you going to do for me not to target you then?" Complainant's supervisor stated in her sworn affidavit that she did not recall "the target comment" and that she did not know "if I said anything to that effect." Complainant taped this conversation taped and offered the tape for the record. The record includes a written description of the conversation, but not the actual tape.
On or about September 13, 2012, Complainant met with the Chief Operating Officer (COO) (RMO2) to discuss the meeting that occurred with his supervisor (RMO1) the prior day. Complainant expressed to the RMO2 that he was being "targeted by his supervisor" and that she had "bad feelings" toward him. Although the record is disputed as to what was actually said, Complainant averred that the RMO2 advised Complainant that he could contact EEO if he needed to take further action.
Thereafter, the RMO2's demeanor to him changed. The RMO2 had previously been cordial and supportive to Complainant. After he spoke with the RMO2, the RMO2 later refused to shake his hand, claiming that he had a cold. Complainant alleged that the demeanor of both the RMO1 and RMO2 changed toward him.
On September 26, 2012, Complainant provided paperwork to his supervisor for the payment of classes under the SCEP. The supervisor did not process the paperwork. She testified that she was not aware that FHFA paid for those classes and that there was no policy to guide her. Complainant was informed that the classes were not paid. Complainant went ahead and paid for the course. He later learned that the Agency had already agreed to pay. After the supervisor was informed by the Human Capital manager of the FHFA's process, Complainant was reimbursed by the Agency.
On December 4, 2012, Complainant asked his supervisor if he could leave at his regularly scheduled time of 4:30 PM the next day to take a final exam. She responded that "you do what you think you have to do for you." Complainant testified that she berated him, but he was not sure if the treatment was based on his gender and he believed that another male intern was treated the same way. Report of Investigation (ROI) at 77.
On January 29, 2013, during a staff meeting, Complainant's supervisor referenced Complainant by name and stated that "a sweat suit was not appropriate attire for work." The day before Complainant wore a polo shirt, pants and boots and she stated to Complainant that he looked like he was running in a track race.
During April of 2013, Complainant received a fully success performance rating. The April 2013 rating did not state that Complainant had any attendance issues. During his performance evaluation meeting, however, the supervisor criticized Complainant for his attendance and questioned his accomplishment report. His accomplishment report mirrored the accomplishments of another employee. He disputed that he had an attendance problem. He also offered "letters of kudos" to contradict his supervisor's assertion that he did not finish assignments on time.
Further, Complainant alleged that the Supervisor favored one of the men who regularly went to work with the supervisor. He described the supervisor and co-worker as "buddies" and alleged that she fought to get that male employee a raise. Complainant stated that he believed that the supervisor treated him and most of the other male employees as she did because she was a female police officer who supervised thirteen men and needed to show that she was in charge.
On May 13, 2013, Complainant's supervisor informed him that his last day of employment would be May 17, 2013, because she had determined that his position would not be converted from a student trainee to a permanent employee position. The supervisor stated that she did not convert him to a career position because of his behavior, professionalism and attendance. ROI at 126.
On his last day of employment, the Security Police escorted him out of the building, although the record is disputed as to whether Security Police escorted him out on their own initiative or whether the supervisor requested that Complainant be escorted out. It is undisputed that she demanded that Complainant he be done by 11:00 AM and when she found that he was not finished, he was escorted out by Security. It is also undisputed that Complainant and RMO1 were upset.
Complainant acknowledged that the triggering event for his contact with the EEO office was when he was escorted out of the building by the Security Police.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation. Complainant wrote to the Manager of EEO Services on April 8, 2014, advising him of the discrepancies and information missing from the report. On April 22, 2014, the Manager of EEO told Complainant that all of his requested changes and addition to the record had been made. ROI at 262. The record is unclear as to whether the Agency provided Complainant with the notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
The record indicates that the Agency offered to settle the matter with Complainant by offering a favorable letter of reference. Complainant did not accept the settlement offer.
The Agency Decision
The Agency thereafter 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. The Agency reasoned that there were no female comparators.
The Agency found that the five incidents in September and the five subsequent incidents during the subsequent right months were not sufficient to establish a claim. The Agency reasoned that the alleged incidents were not sufficiently severe or pervasive to unreasonably interfere with Complainant's work performance or create an intimidating, hostile, or offensive work environment.
The Agency found that Complainant cannot establish a claim of hostile work environment on the basis of retaliation because there was no evidence that the Complainant engaged in protected activity. Instead, the Agency attributed the treatment to a clash of personalities and found no discrimination.
This appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant asserts that the Agency failed to conduct a thorough and fair investigation of his case and that the investigator failed to include the recording that he submitted to substantiate his claim that his supervisor stated to him "if you feel like I'm targeting you, what are going to do for me not to target you then." Complainant also disputed the credibility of the supervisor's statements that he failed to timely complete his assignments and had an attendance problem.
In response, the Agency contends that there is no female comparator and that there is no basis for imputing liability for reprisal, because he never complained of discrimination or harassment to any agency official until May 14, 2012, the day after he learned he would not be converted to a career position and because the Agency did not know of his allegations, it could not take any action in response.
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").
Disparate Treatment
Section 717 of Title VII requires that federal agencies make all personnel actions free of discrimination. See 42 U.S.C. � 2000e-16 (all personnel actions in federal employment "shall be made free from any discrimination based on sex"). Reprisal is also unlawful under Title VII.
To prevail in a Title VII disparate treatment claim, Complainant must establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The Agency maintains that Complainant could not establish a prima facie because there are no female comparators and because Complainant acknowledged that he was not sure that his treatment was due to his gender.
We find, with regard to the alleged actions that the record supports the determination that Complainant did not show that he was subjected to discrimination because of his sex or treated differently than other similarly situated individuals outside of his protected group. In this case, the comparator work group was entirely male. Complainant did not identify a female employee who was treated better.
Disparate Treatment: Reprisal, Terms and Conditions
Title VII states that "[a]ll personnel actions affecting [federal] employees or applicants for employment . . . shall be made free from any discrimination based on . . . sex." 42 U.S.C. Section 2000e-16(a). To establish a claim of disparate treatment on the basis of sex or reprisal, a complainant must show the agency took an adverse employment action against the complainant because of the complainant's sex or reprisal or otherwise failed to make its personnel actions free of discrimination. This can be shown through either direct or indirect evidence. Where there is direct evidence of discrimination there is no need to prove a prima facie case or facts from which an inference of discrimination can be drawn. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985). Liability is established where the trier of fact finds that there is direct evidence of discrimination. See Lusardi v. Department of the Army, EEOC Appeal No. 0120133395 (April 1, 2015). This action is based on circumstantial evidence.
Complainant averred that he felt belittled, but he failed to offer any proof of any managerial harassment or any adverse action taken against him or evidence that he was subjected to a different and harsher standard than the Agency imposed on other employees outside of his protected groups.
However, the prima facie inquiry may be dispensed with in this case, however, since the Agency asserted that it had legitimate reasons for its action.2See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). The supervisor stated that her actions were premised on her perceptions of Complainant's attitude, style of dress, attendance and performance. On these bases, she decided not to convert his position to a permanent position and summoned the Security Police.
To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
Complainant provided insufficient evidence to show that the Agency's reasons were a pretext for sex discrimination or reprisal. He questioned why the Agency failed to consider the positive letters of commendation or the fact that he provided a tape recording of the conversation in which she asked him "what are you going to do so that I will not target you?" Complainant raised some questions as to whether his supervisor's perceptions were legitimate, when he challenged the supervisor's perception that he failed to perform to her expectations. The record shows that she expected him to have finished his exit paperwork by 11:00 AM and both he and the supervisor reacted negatively when that was not done. At best, this evidence shows that the supervisor may have acted in a petty, arbitrary or unreasonable manner. This does not, however, establish pretext for sex discrimination or reprisal.
Hostile Work Environment
To establish a claim of harassment, Complainant must show that: (1) he is a member of a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the protected class; (4) the harassment 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. Johnson v. Department of Homeland Security (Immigration and Customs Enforcement), EEOC Appeal No. 0120113331 (July 1, 2014). The evaluation "requires careful consideration of the social context in which particular behavior occurs and is experienced by its target." Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998).
To prove his 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. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). Complainant must also prove that the conduct was taken because of a protected basis - in this case because of his sex or prior, protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. In this case, there is insufficient evidence that the harassment was based on his protected classes.
We examined the record and accepted the evidence as presented by Complainant in its entirety and find that Complainant failed to prove that the actions were taken because of his sex or any prior EEO activity. He stated that he believed that he was being targeted, but he conceded that he was uncertain as to whether his gender was a factor. He also acknowledged that he had not pursued an EEO complaint prior to his last day when he was escorted out of the building. Consequently, we find that he did not show, by a preponderance of the evidence, that the harassment complained of was based on the protected classes. For the reasons set forth herein, we find that the Agency's decision is supported by the record.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 tends 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. The requests 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 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
December 9, 2016
__________________
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.
2 In addition, the deciding official averred that the management official made an error when she failed to process his paperwork, which management later corrected after conducting a review.
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