0120090086
07-22-2010
Andrew J. McFarlane, Complainant, v. Gregory B. Jaczko, Chairman, Nuclear Regulatory Commission, Agency.
Andrew J. McFarlane,
Complainant,
v.
Gregory B. Jaczko,
Chairman,
Nuclear Regulatory Commission,
Agency.
Appeal No. 0120090086
Hearing No. 410-2008-00256X
Agency No. NRC-07-10
DECISION
On September 29, 2008, Complainant filed an appeal from the Agency's
August 26, 2008, 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 appeal is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether Complainant established that he was
subjected to discrimination on the bases of sex and reprisal for prior
protected EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Special Agent, GG-1811-13, at the Agency's Office of Investigations,
Region II Field Office in Atlanta, Georgia. Complainant's Aff., at 1.
Complainant was one of six individuals in the Atlanta Field Office.
Report of Investigation (ROI), at Ex. F1a-d. Complainant's first-level
supervisor, a female, was the Field Office Director (FOD). Id.
Complainant's co-workers included a male Senior Special Agent (SSA),
a male and a female Special Agent (SA1 and SA2, respectively), and a
female Investigations Assistant (IA). Id. SA2 had filed a formal EEO
complaint on September 17, 2007, alleging that she was being harassed
by FOD and subjected to a hostile work environment because of her sex.
ROI, Aff. F8, at 2.
On September 11, 2007, Complainant filed an EEO complaint alleging that
the Agency discriminated against him on the basis of sex (male) when:
1. on July 25, 2007, during a conversation with SA2, he became aware
that FOD had created a hostile work environment from approximately April
17, 2006 through April 30, 2007 by frequently engaging in intimidating,
oppressive, insulting, negative, and demeaning behavior directed at female
employees in the office, which interfered with his work performance.
Complainant cited the following actions by FOD:
a. on April 25, 2006, she shouted abusively at SA2 and advised Complainant
that he was on a "different track";
b. on or about April 25, 2006 and May 16, 2006, she failed to give
milestone deadlines for investigative work to Complainant, yet gave
deadlines to SA2;
c. on August 7, 2006, she threatened the staff and sent a chilling
effect during a meeting to discuss a routine office audit by stating that
"whatever we tell the auditors will come back to her";
d. between August 2006 and February 2007, she subjected female employees
to "name-calling and degrading slurs," such as referring to them as
"dyslexic" and a "Drama-Queen";
e. between September 2006 and October 2006, she failed to permit female
agents to carry a firearm into the field in circumstances where male
agents were allowed to carry a firearm;
f. in September 2006, February 2007, and on April 16, 2007, she
acknowledged Complainant "time and again" in front of his co-workers for
producing superior work which he found to be "ostracizing, embarrassing
and unfair" to him and his co-workers; and
g. on or about April 30, 2007, she threatened the staff during a meeting
that even though she would be on a Senior Executive Service Candidate
Development Program detail, "she would be coming back to do all of
[their] performance appraisals."
On September 27, October 15, October 24, and November 13, 2007,
Complainant amended his complaint alleging that the Agency also harassed
and discriminated against him on the basis of reprisal for prior protected
EEO activity (informal and formal complaint) when:1
2. on September 5, 2007 and September 26, 2007, FOD met with him to
discuss case assignments and had SSA sit in on the meetings when SSA
had not done so before he filed his complaint;
3. on October 5, 2007, FOD met with SA2 regarding her case assignments
and made SA2 cry uncontrollably, disrupted the office, and caused him
to take leave2;
4. on October 22, 2007, FOD met with him and admonished him for being
discourteous towards her;
5. on October 4, October 17, and October 31, 2007, FOD denied him the
opportunity to serve as Acting FOD and assigned SA1 and SA2 to serve as
Acting FOD; and
6. on November 13, 2007, he learned that FOD had assigned SA1 to serve
as Training Officer for a new Special Agent, when she had stated, before
he filed his complaint, that he would be the Training Officer.
In a November 15, 2007, letter, the Agency partially accepted
Complainant's claims for investigation. ROI, Ex. C2, at 1. The Agency
dismissed claim 13 for untimely EEO Counselor contact pursuant to
29 C.F.R. � 1614.107(a)(2) because none of the alleged discriminatory
events occurred within 45 days of his July 30, 2007 contact with the EEO
Counselor, even though his statements indicated that he was present,
and therefore aware, of the alleged events at the time they occurred.
Id. at 5. In addition, the Agency found that claim 1 failed to state
a claim pursuant to 29 C.F.R. � 1614.107(a)(1) because Complainant had
failed to show that he suffered a harm with respect to a term, condition,
or privilege of his employment, and the alleged harassment was directed
at other employees not in his protected class. Id. The Agency accepted
claims 2 through 6 for investigation. Id. at 6.
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 EEOC 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.
Specifically, the Agency found that Complainant had failed to establish
a prima facie case of sex-based disparate treatment because Complainant
did not allege or show that he was denied conditions or benefits of
employment that were afforded to similarly-situated female employees,
but instead alleged that FOD gave him preferential treatment. Agency's
August 26, 2008 Final Decision (FAD), at 13-14. In addition, the Agency
assumed, arguendo, that Complainant had established a prima facie case of
retaliatory disparate treatment, and found that Complainant had failed
to demonstrate that any of management's stated reasons were a pretext
for unlawful discrimination. Id. at 14-17. Further, the Agency found
that Complainant had failed to demonstrate that he was subjected to
harassment based on his membership in the protected class of sex or
that the alleged actions were severe or pervasive enough to create a
hostile work environment. Id. at 19-20. Finally, the Agency found that
Complainant had failed to show that he was subjected to retaliation-based
harassment because he had not shown that the alleged actions were taken
because of his protected EEO activity rather than for unrelated reasons.
Id. at 20-21.
CONTENTIONS ON APPEAL
Complainant did not submit a statement on appeal. The Agency requests
that the Commission affirm its final decision, noting that Complainant
cited no error of fact or law in the Agency's decision and offered no
comments specific to his claims of discrimination. Agency's Appeal Brief,
at 1-2.
ANALYSIS AND FINDINGS
Standard of Review
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 Ch. 9,
� VI.A. (Nov. 9, 1999) (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").
Harassment - Claims 2, 3, and 4
Complainant alleged that he was subjected to harassment by FOD on the
basis of reprisal in claims 2, 3, and 4. Regarding claim 2, Complainant
attested that he perceived SSA's presence as "threatening" because he had
seen FOD in the past start to develop information on an agent which she
could use in a negative manner and thought that this was "the beginning of
a process to attack my performance in the future ..." Complainant's Aff.,
at 4. Complainant attested that while SSA could act as FOD's "witness,"
he would not have a representative present in meetings that could have
involved negative performance discussions.4 Id. Regarding claim 3,
Complainant attested that he viewed FOD's actions as a form of reprisal
because FOD knew about his and SA2's complaints, but continued to create
a hostile work environment by continuing the harassment of SA2. Id.
Regarding claim 4, Complainant attested that he thought FOD was going to
attempt to document a policy violation because she mentioned that Agency
policy requires professional courtesy in the workplace.5 Id. at 8.
To establish a claim of harassment based on race, sex, color, disability,
age, or reprisal, complainant must show that: (1) he is a member of the
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; and (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. Humphrey v. U.S. Postal Serv., EEOC Appeal
No. 01965238 (Oct. 16, 1998); 29 C.F.R. � 1604.11. 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., EEOC Notice No. 915.002 (Mar. 8, 1994).
Further, the incidents must have been "sufficiently severe and 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); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75
(1998). In the case of harassment by a supervisor, complainant must
also show that there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Upon review of the record, we find that the alleged incidents were not
sufficiently severe or pervasive as to constitute unlawful harassment.
The Commission has repeatedly found that claims of a few isolated
incidents of alleged harassment usually are not sufficient to state
a harassment claim. See Phillips v. Dep't of Veterans Affairs, EEOC
Request No. 05960030 (July 12, 1996); Banks v. Health & Human Serv.,
EEOC Request No. 05940481 (Feb. 16, 1995). Unless the conduct which
complainant identified is very severe, a single incident or isolated
incidents generally will not create a hostile environment. See, e.g.,
Scott v. Sears, Roebuck & Co., 798 F.2d 210, 214 (7th Cir. 1986).
In this case, Complainant has cited four incidents of harassment by
FOD. We note that with regard to the incidents in claim 2, the record
indicates that SSA sat in on meetings with all of the agents, not just
with Complainant. ROI, Aff. F3, at 4; ROI, Aff. F6, at 6; ROI, Aff. F7,
at 4; ROI, Aff. F8, at 2. In addition, we note that the incident in claim
3 did not involve a direct interaction between FOD and Complainant and
that Complainant even attested, "I perceived it as harassment based on
reprisal for [SA2's] prior EEO complaint." Complainant's Aff., at 6.
Even assuming that the events occurred as described by Complainant,
we find that they do not establish that Complainant was subjected to
harassment that was sufficiently severe or pervasive to create a hostile
work environment.
Disparate Treatment - Claims 5 and 6
To prevail in a disparate treatment claim such as this, Complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must
generally 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 prima facie inquiry may be dispensed with
in this case, however, since the Agency has articulated legitimate
and nondiscriminatory reasons for its conduct. See 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).
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, 143 (2000);
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't
of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't
of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997); Pavelka
v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
Claim 5 - Denied Opportunities to Serve as Acting FOD
Assuming, arguendo, that Complainant has established a prima facie case of
reprisal discrimination, we find that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, FOD attested
that she did not have a rotation system to determine who would serve
as Acting FOD during her brief absences,6 but usually considered
the following factors when making assignments: Agency seniority,
dependability, case load, availability, and scheduled meetings. ROI,
Aff. F3, at 11. FOD attested that SA1 and SA2 had more NRC seniority
than Complainant and that, during the dates in question, Complainant
had two cases which were late and required additional investigative
fieldwork for completion, and one case that had significant headquarters
and Agency interest. Id. at 12.
Because the Agency has articulated legitimate, nondiscriminatory reasons
for its actions, the burden shifts to Complainant to demonstrate by the
preponderance of the evidence that the Agency's reasons are a pretext
for discrimination. In an attempt to show pretext, Complainant asserts
that he previously was allowed to be Acting FOD, but he has not had the
opportunity to do so since he filed his complaint. Complainant's Rebuttal
Statement, at 3-4. Regarding FOD's statement that SA1 and SA2 had more
Agency seniority, Complainant argues that "the rules changed regarding
seniority advantage" after he filed his complaint. Id. at 4-5. As an
example of that change, Complainant states that, in October 2006, he was
given the choice of available office space over SA1 because he had more
government experience. Id. Regarding FOD's statement that he was too
busy with high profile cases, Complainant argues, "[I]t's just not true.
We are all busy." Id. at 4.
In this case, we find that Complainant has failed to provide evidence
that the Agency's actions were based on retaliatory intent. The record
indicates that Complainant started at the Agency in 2006, whereas SA1 and
SA2 started at the Agency in 2004 and 1991, respectively. Complainant's
Aff., at 2; ROI, Aff. F7, at 1; ROI, Aff. F8, at 1. In addition, there is
no evidence in the record that FOD changed how she calculated seniority
for Acting FOD purposes after Complainant filed his complaint. Finally,
although Complainant argues that his opportunities as Acting FOD have
diminished since he filed his complaint, he has presented no evidence,
either generally in terms of the number of opportunities or specifically
in terms of actual dates, showing such a decrease.
Claim 6 - Denied Assignment as Training Officer
Assuming, arguendo, that Complainant has established a prima facie case
of reprisal discrimination, we find that the Agency has articulated
legitimate, nondiscriminatory reasons for its actions. Specifically, FOD
attested that she never had any discussion with Complainant about training
the new Special Agent. ROI, Aff. F3, at 17-18. In addition, FOD attested
that SSA, by virtue of his position, was the appropriate person to train
new agents and was also Complainant's Training Officer. Id. Similarly,
SSA attested that he did not recall any discussion of Complainant being
the Training Officer and that it "was understood from the beginning"
that he would be the Training Officer in this instance because training
new agents was part of his job function. ROI, Aff. F6, at 10-11.
Because the Agency has articulated legitimate, nondiscriminatory reasons
for its actions, the burden shifts to Complainant to demonstrate by the
preponderance of the evidence that the Agency's reasons are a pretext
for discrimination. In an attempt to show pretext, Complainant asserts
that FOD told him in a one-on-one meeting that he would be the Training
Officer, even though he was a new agent, because she saw his work,
liked it, and wanted the new agents to emulate it. Complainant's Aff.,
at 4. Complainant argues that, although his allegation is "simply FOD's
word against mine," his version of the events is consistent with the
overwhelmingly positive attention, corroborated by co-worker testimony,
that he received from FOD before he filed his complaint. Id.
In this case, we find that Complainant has failed to provide evidence
that the Agency's actions were based on retaliatory intent. There is
limited testimony by Complainant's co-workers about the nature of
FOD's treatment of him before he filed his complaint, but all of them
testified as to whether they observed a change his treatment after he
filed his complaint. SA2 attested that a negative change occurred, in
that Complainant was previously the favored agent in the office but now
was avoided and ignored by FOD. ROI, Aff. F8, at 2. However, SSA, SA1,
and IA all attested that they did not observe any difference in the way
that FOD treated Complainant before and after he filed his complaint.
ROI, Aff. F6, at 3; ROI, Aff. F7, at 2; ROI, Aff. F9, at 2. We are not
persuaded that FOD's failure to assign Complainant as the Training Officer
was motivated by retaliatory animus. In so finding, we note that because
Complainant withdrew his request for a hearing, we do not have the benefit
of an AJ's findings after a hearing, and therefore, we can only evaluate
the facts based on the weight of the evidence presented to us.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, the Commission AFFIRMS
the Agency's final decision, finding that Complainant failed to establish
harassment or discrimination on the bases of race or reprisal for prior
EEO activity.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999).
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).
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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court
that the Court appoint an attorney to represent you and that the Court
also permit you to file the action without payment of fees, costs,
or other security. See Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as
amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request
is within the sole discretion of the Court. Filing a request for an
attorney with the Court does not extend your time in which to file
a civil action. Both the request and the civil action must be filed
within the time limits as stated in the paragraph above ("Right to File
a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 22, 2010
Date
1 The Agency appears to have characterized claims 2 through 6 as
harassment and discrimination on the bases of both sex and reprisal.
ROI, Ex. C2, at 3. Our review of the record, especially Complainant's
affidavit, indicates that the basis of sex is more properly limited
to claim 1 and the basis of reprisal applies to claims 2 through 6.
Complainant's Aff.
2 Complainant attested that he was not present at the meeting between
FOD and SA2, but that the incident disrupted his ability to work in the
office because SA2 came out of the meeting crying and told him what had
happened during the meeting. Complainant's Aff., at 6. In addition,
Complainant attested that SA2's "crying and the tense atmosphere that
had existed in the office for some time [due to the previous incidents
of SA2 complaining about being harassed by FOD] resulted in my feeling
extreme stress and feeling sick at my stomach ..." Id.
3 Regarding claim 1, we decline to address it because Complainant
does not raise the dismissal of the claim on appeal. The Commission
exercises its discretion to review only the issues specifically raised in
Complainant's appeal. Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), at 9-10 (Nov. 9, 1999).
4 Complainant attested that no negative performance issues were discussed
at the meetings in question. Complainant's Aff., at 4.
5 There is no indication in the record that FOD documented a policy
violation as a result of this incident. Complainant's Aff., at 9; ROI,
Aff. F3, at 16.
6 FOD attested that SSA normally served as Acting FOD in her absence,
but that she assigned a Special Agent to the role if SSA was unavailable.
ROI, Aff. F3, at 11.
??
??
??
??
2
0120090086
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120090086