Adam D.,1 Complainant,v.Chad F. Wolf, Acting Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity Commission

Oct 14, 2020

2020002826 (E.E.O.C. Oct. 14, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Adam D.,1 Complainant, v. Chad F. Wolf, Acting Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal No. 2020002826 Hearing No. 510-2016-00340X Agency No. ICE-23435-2015 DECISION 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 November 2, 2018, final order concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as a Criminal Investigator, GS-13, at the Agency’s Homeland Security Investigations, Office of the Special Agent-in-Charge in Miami, Florida. 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. 2020002826 2 On June 16, 2015, Complainant filed a formal EEO complaint claiming that the Agency discriminated against him based on race (African-American) and age (born 1963) when, on March 2, 2015, Complainant found a noose hanging on the wall of his office cubicle.2 After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an Equal Employment Opportunity Commission AJ. Complainant timely requested a hearing. The Agency filed a motion for summary judgment. Following Complainant’s response in opposition, the AJ issued a decision by summary judgment in favor of the Agency. On November 2, 2018, the Agency subsequently issued a final order adopting the AJ’s finding of no discrimination. The instant appeal followed. On appeal, Complainant, through counsel, asserts that Complainant was subjected to discriminatory harassment when he found a hangman’s noose in his office cubicle. Specifically, Complainant indicates that there is a basis for imputing liability to the Agency because the Agency failed to take appropriate corrective action after it was notified of the hanging noose. Complainant requests that the Commission reverse the Agency’s final order. In response, the Agency submits an appeal brief asserting that Complainant’s appeal is untimely before the Commission and should be dismissed. Alternatively, the Agency requests that the Commission affirm its final order implementing the AJ’s finding of no discrimination. ANALYSIS AND FINDINGS Preliminary Matter - Timeliness of Appeal As an initial matter, we address the Agency’s argument that Complainant’s appeal before the Commission is untimely, pursuant to 29 C.F.R. § 1614.403(c). The record indicates that the Agency issued its final order adopting the AJ’s decision on November 2, 2018, and the notice attached to the final order indicated that Complainant had thirty (30) days to appeal to the Commission. However, the Agency asserts that Complainant did not file his appeal filed his appeal, until January 21, 2020, well beyond the thirty (30) day filing deadline. However, we find that the record contains insufficient mail tracking confirmation to indicate that Complainant and Complainant’s attorney received the Agency’s final order on November 14, 2018 and November 20, 2018, as the Agency asserts. 2 Complainant clarified in his opposition to the Agency’s motion for summary judgment that he did not believe that the noose was hung because of his age. Rather, Complainant asserts that the presence of the noose had a stronger impact on him because of his age. 2020002826 3 The tracking confirmation provided in the record for Complainant’s receipt of the Agency’s final order indicates that the order was delivered to “Fort Lauderdale, FL” on November 14, 2018. However, documentation in the EEO Counselor’s report and the formal complaint indicate that Complainant lived in Plantation, Florida. Additionally, the tracking confirmation provided in the record for Complainant’s attorney’s receipt of the Agency final order only indicates that the order was delivered to “La Grange, IL” on November 20, 2018 and does not indicate with any specificity that it was delivered to Complainant’s attorney’s address. Therefore, we find that there is insufficient evidence in the record to conclude that the instant appeal is untimely. Merits of the Case The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Complainant has not pointed with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. In fact, on appeal, Complainant, through counsel, does not indicate that the AJ erred in issuing a decision by summary judgment. Rather, Complainant disputes the AJ’s ultimate finding of no discrimination. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. Complainant claims that he was subjected to a hostile work environment. To establish a claim of discriminatory environment 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 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 2020002826 4 The conduct is evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. 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. See Harris v. Forklift Systems, Inc. 510 U.S. 17, 21-22 (1993); Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). The evaluation “requires careful consideration of the social context in which particular behavior occurs and is experienced by its target.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). Here, Complainant saw a hanging noose in his office cubicle on Monday, March 2, 2015, after having been absent from the office since the prior Thursday. Complainant testified that the noose was made from a physical therapy rope he used to treat a shoulder injury, and he stored the rope in his office cubicle. When Complainant saw the noose, he stated that he took a picture of it, placed the noose in an evidence bag, and texted the picture to all the individuals in his division (the Violent Gangs Task Force (“VGTF”)), comprised of ten individuals, because he believed that someone in the VGTF had hung the noose.3 In applying the hostile work environment standard, the Commission recognizes that Complainant’s claim of hostile work environment essentially involves a single incident and management's response to that incident. However, in limited circumstances, we have held that a single incident may result in a finding of discrimination under Title VII. Incidents where African Americans are subjected to nooses are an example of this type of incident. See Juergensen v. Dep't of Commerce, EEOC Appeal No. 0120073331 (Oct. 5, 2007) (a hangman's noose is “a highly charged and powerful symbol in the history of this country, calling up painful memories of the lynching of thousands of African Americans”). We therefore conclude that this event involving a hangman's noose was an objectively hostile event which was sufficiently severe to alter the conditions of Complainant’s employment and to create an abusive work environment. See Posey v. U.S. Postal Serv., EEOC Appeal No. 01986619 (July 10, 2011). “[A] noose evokes an image, particularly among African-Americans, of a disgraceful past of extreme violence and racial bigotry.” Tootle v. Dep't of the Navy, EEOC Appeal No. 07A40127 (Feb. 10, 2006) (single incident of a noose in the middle of workspace of African American employees, even discounting the charged racial climate of the Agency, created a hostile work environment). It is not unreasonable to believe that the noose would lead Complainant, an African American, to feel physically threatened by its presence given the role of nooses in African American history. 3 Complainant explained in his affidavit that before the March 2, 2015 incident, there had been other occasions in the office where he could not find specific items on his desk but the items “would mysteriously reappear” on his desk. Complainant indicated that he thought it was “like a joke or something.” 2020002826 5 Having determined that the presence of the noose was sufficiently severe in Complainant’s workplace to alter the conditions of his employment, we next consider the Agency’s liability for the incident. The Commission has held that an employing agency is liable for harassment by a co-worker or other non-supervisor when it “knows or should have known of the conduct, unless the Agency can show that it took immediate and appropriate corrective action.” See 29 C.F.R. § 1604.11(d). In this case, there is no evidence that a supervisor or a non-supervisor was responsible for placement of the noose in Complainant’s cubicle. An investigation failed to reveal the indemnity of the individual(s) responsible for the incident. However, Complainant testified that he believed that co-workers in his division were responsible, even though the Office of Professional Responsibility (“OPR”) investigation report revealed that some twenty individuals, many of whom worked for other agencies, had access to the building where Complainant worked during the specific timeframe the noose was placed in Complainant’s office. The record reflects that the Agency was aware of the noose on the same day that Complainant discovered it in his cubicle - March 2, 2015. Specifically, Complainant testified that he took a picture of the noose, emailed his co-workers the picture, and also texted the picture to his supervisor (“S1”). The next day, March 3, 2015, Complainant stated that S1 “urged” him to file a complaint. Subsequently, Complainant reported the noose to the Agency’s Office of Diversity and Civil Rights and the Agency’s Joint Intake Center (“JIC”), the entity responsible for receiving reports of employee misconduct. Additionally, S1 testified that he immediately reported the incident to his supervisor (“S2”), the HIDTA supervisor,4 and the OPR. Once notified of this incident, the Agency can only avoid liability for the harassment if it can establish that it undertook immediate and appropriate corrective action. Our review of the record supports the AJ’s determination that the Agency has met this burden of proof and there is no basis for imputing liability to the Agency. The record supports that the OPR Senior Special Agent (“OPR Agent”) began the process of initiating a formal investigation on March 4, 2015 - one day after S1 had informed the OPR of the noose. In addition to initiating an investigation, the OPR Agent and S1 held a meeting on March 6, 2015, with the entire VGTF division. During the meeting, they informed VGTF staff that the hanging of the noose was distasteful, offensive, and would not be tolerated. While acknowledging that there was a history of VGTF employees performing practical jokes on each other, they emphasized that this matter was not a joke. The OPR Agent further informed the VGTF that he would investigate the matter after no one came forward as being responsible for placing the noose in Complainant’s office space. Our review of the OPR investigation report reflects that the OPR Agent conducted a thorough investigation even though ultimately no individual was identified as placing the noose in Complainant’s workstation. 4 The HIDTA supervisor oversaw the building where Complainant’s workstation is located. 2020002826 6 A copy of the OPR investigation report indicates that card entry access information was obtained for the period February 26, 2015 through March 2, 2015. The information “identified a number of [Complainant’s] co-workers who were in the office on the possible dates in question.” The record indicates that many of these individuals with access to the HIDTA building worked for various federal agencies.5 However, the report clarified that prior to 7:00 am, individuals had restricted access to just their floors. The report revealed that only two employees (“E1” and “E2”) accessed the HIDTA building on Saturday, February 28, 2015. E1 worked for the FBI and stated that he was in the building after hours to clean out his office because he was being transferred to another division. E2 worked for the DEA and initially stated that he was on leave during the period at issue and did not recall going into the building on the day in question. However, during a follow-up interview with the OPR Agent, E2 acknowledged that he reported to the office on February 28, 2015 after hours to “input his time and attendance” for the period he was on sick leave. The report also indicated that video surveillance cameras were not stationed in a location covering Complainant’s workstation. Additionally, the video footage was not initially available because HIDTA had updated its surveillance system during the period in question. Nevertheless, the report indicated that the OPR Agent requested the hard drives from the surveillance cameras which were imaged and examined by a computer forensic analyst but review still yielded negative results. Additionally, twenty individuals assigned to HIDTA were interviewed, but none of the individuals claimed responsibility for the incident and none of the individuals were aware of anyone who took responsibility for the incident. However, the report indicated that the individuals indicated that Complainant had had a prior issue on September 15, 2014, involving another agent making racial comments. This individual was terminated from the Agency, but later reinstated. In addition, the record shows that the Special Agent-in-Charge (“SAC”) requested the Agency’s Chief Counsel for Miami provide training to her managers on EEO issues including harassment and retaliation, which was subsequently provided. Based on this evidence, we conclude that the record reflects that from the date of harassment, the Agency took immediate, corrective action. Although Complainant asserts that the Agency failed to conduct DNA testing on the noose, the record indicates that Complainant acknowledged in his deposition that the Agency would have had to get a court order to do so. The record supports that the Agency viewed the video footage and interviewed several individuals who were determined to have access to Complainant’s workstation during the relevant period but were unable to identify who was responsible for the incident. While Complainant disagreed with the manner in which the Agency conducted the investigation, (i.e. Complainant being present in the office while others were being interviewed as part of the investigation) the record supports that the Agency conducted a thorough investigation. 5 Those agencies included the Drug Enforcement Administration (“DEA”), the Federal Bureau of Investigation (“FBI”), the Federal Bureau of Prisons (“BOP”), and the Monroe County Sheriff’s Office (“MCSO”). 2020002826 7 The Agency also initiated EEO training opportunities for management on harassment and retaliation issues. We note that there is no indication in the record that there were any subsequent instances of racial harassment being reported by Complainant. In sum, we find that there is no basis for imputing liability for this unfortunate incident to the Agency. CONCLUSION After careful review of the record, including Complainant's contentions on appeal, we find that Complainant failed to prove that the Agency violated Title VII or the ADEA as alleged. The Agency's final order is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the complainant or the agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 2020002826 8 Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 October 14, 2020 Date