Van P.,1 Complainant,v.Sally Jewell, Secretary, Department of the Interior (Office of Surface Mining Reclamation & Enforcement), Agency.

Equal Employment Opportunity Commission

Mar 29, 2016

0120142092 (E.E.O.C. Mar. 29, 2016)

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

Van P.,1
Complainant,

v.

Sally Jewell,
Secretary,
Department of the Interior
(Office of Surface Mining Reclamation & Enforcement),
Agency.

Appeal No. 0120142092

Hearing No. 560-2014-00033X

Agency No. DOI-OS-12-0626

DECISION

Complainant filed an appeal from the Agency’s final order dated April 7, 2014, finding no
discrimination with regard to his 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, we AFFIRM the Agency’s final order finding no discrimination.

BACKGROUND

In his complaint, dated October 25, 2012, Complainant alleged discrimination based on race
(African American) when:

(1) On September 12, 2012, management denied his request for administrative leave in
lieu of attending an office picnic held at a venue he viewed as offensive;
(2) On September 12, 2012, management stated he would “not be charged leave if he
did not escalate the issue,” and refused to confirm the leave approval in writing;
(3) On September 12, 2012, management’s uttered a promise that they would “not
leave him hanging” had a racial overtone; and
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.

0120142092

2
(4) On August 7, 2012, management attempted to pressure him into a conversation with
two other minorities regarding another coworker’s reason for relocating.

Upon completion of the investigation of the complaint, Complainant requested a hearing before
an Equal Employment Opportunity Commission Administrative Judge (AJ). On March 20,
2014, the AJ issued a decision without holding a hearing, finding no discrimination. The
Agency’s final order implemented the AJ’s decision.

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This
regulation is patterned after the summary judgment procedure set forth in Rule 56 of the
Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court’s function is not to weigh the evidence but rather to determine whether there are
genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at
the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. An issue of fact is “genuine” if the evidence is such that a
reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477
U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988).
A fact is “material” if it has the potential to affect the outcome of the case. In this case, we
find that the AJ properly issued a decision without a hearing because no genuine dispute of
material fact exists.

In the instant case, assuming arguendo that Complainant had established a prima facie case of
discrimination, the AJ determined that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged incidents. During the relevant time period at issue, Complainant was
employed as an Auditor, GS-511-9, at the Agency’s Central Audit and Compliance, Office of
Natural Resources Review, in Tulsa, Oklahoma.

With regard to claims (1), (2), and (3), the record indicates that in August, 2012,
Complainant’s office organized its annual picnic and his coworker was put in charge of
collecting suggestions from its staff for potential venue choices. Among a number of the
suggested venues (i.e., Tulsa Fair, the Gilcrease museum, Dave and Busters, Tulsa Air and
Space Museum, and the Tulsa Zoo), the Gilcrease museum received the most votes and on
August 27, 2012, the coworker informed the office that the picnic would be on September 12,
2012, at the Gilcrease Museum which was featuring an exhibit on George Washington entitled
“Discover the Real George Washington: New Views from Mount Vernon.” Management
indicated that Complainant made no mention of finding the venue or exhibit offensive until he

0120142092

3
notified management via an electronic message on September 10, 2012. Complainant does not
dispute the foregoing.

Complainant claimed that he sent an electronic message to his supervisors on September 10,
2012, objecting to the picnic’s venue of which he found offensive due to Washington’s views
on religion and slavery and asked he be allowed to go home for the day instead and not being
charged leave. Complainant’s second level supervisor (S2) indicated that S2 initially denied
his request because Complainant was not entitled to administrative leave for not attending the
picnic under the Agency’s policy. Specifically, management stated that under its policy, an
employee was not required to attend an office social event and if an employee chooses not to
attend such, they either have the choice of taking personal leave and/or to work, but cannot be
granted administrated leave.

S2 stated that since Complainant got very upset when S2 denied his request, S2 told
Complainant that as a courtesy to his feeling and to prevent the issue from escalating further,
he would be allowed the time off. S2 acknowledged that he did not put such approval in
writing.

Complainant’s first level supervisor (S1) stated that on September 11, 2012, S1, upon
Complainant’s request, was in S2’s office to witness S2’s approval of Complainant’s
administrative leave request. During that time, S2 said “Well, [Complainant], I wasn’t going
to leave [Complainant] hanging. I was going to tell [S1].” S1, agreeing with S2, indicated
that there was no racial overtone in light of the entire statement made by S2.

It is noted that despite the Agency’s policy, S2 granted orally Complainant’s request for
administrative leave at issue. The record indicates that Complainant did not take
administrative leave and worked for the day since S2 refused to put the approval in writing.
S2 indicated that he had not granted administrative leave for others in similar situations. S2
also noted that he did not monitor when people left the social events and it was possible people
left early. After a review of the record, we find that Complainant failed to show that there
were any similarly situated employees not in his protected groups who were treated differently
under similar circumstances.

With regard to claim (4), Complainant claimed that on August 7, 2012, during a conversation
with two Agency trainers, both male, S2 came over and began talking about an identified
employee (EE), who was also male, who had recently moved to another office. S2 began
gossiping about EE indicating that EE had moved as he had met some “hot mama” over the
internet and S2, trying to drag Complainant into the conversation, said “isn’t that right,
[Complainant]?” Complainant acknowledged that at that time, he did not indicate to S2 that he
found S2’s foregoing behavior offensive. S2 acknowledged that although he could not recall
exactly what he said on that day, he was merely gossiping and carrying a casual “guy talk”
conversation. S2 stated that the Tulsa office was small and less formal and he did not create a
hostile work environment for Complainant. S2 noted that a number of months after the
incident, his supervisor told S2 to be more formal around Complainant and he did so. Upon

0120142092

4
review, Complainant failed to show that S2’s unprofessional behavior on one occasion was
based on discrimination as he alleged.

After a review of the record, we agree with the AJ that Complainant failed to rebut the
Agency’s legitimate, nondiscriminatory reasons for the alleged incidents. With regard to his
claim of harassment, we find that Complainant failed to establish the severity of the conduct in
question or that it was related to any protected basis of discrimination. We also find that that
Complainant failed to show that there were any similarly situated employees not in his
protected groups who were treated differently under similar circumstances. Based on the
foregoing, we find that Complainant has failed to show that the Agency’s action was motivated
by discrimination as he alleged.

CONCLUSION

Accordingly, the Agency’s final order finding no discrimination is AFFIRMED.

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).

0120142092

5

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

March 29, 2016
Date