0120142109
08-23-2016
Art B.,1 Complainant, v. G. Wayne Clough, Secretary, Smithsonian Institution, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Art B.,1
Complainant,
v.
G. Wayne Clough,
Secretary,
Smithsonian Institution,
Agency.
Appeal No. 0120142109
Hearing No. 510-2013-00864X
Agency No. 1303121412
DECISION
Complainant filed an appeal from the Agency's April 15, 2014 final decision concerning his equal employment opportunity (EEO) complaint. He alleged 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).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Police Officer, GS-7 at the Agency's Office of Protection Services, National Zoological Park facility in Washington, DC.
On October 17, 2012, Complainant made EEO contact regarding incident one. On December 14, 2012, Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination and a hostile work environment on the bases of race (African-American) and color (Medium Brown). Specifically, he claimed discrimination when:
1. On October 15, 2012, he was told that he would be transferred to the Air and Space Museum the next day;
2. On October 21, 2012, he was given a Letter of Counseling and charged with AWOL;
3. On October 24, 2012, he was told to move his car from the location at which it was parked;
4. On October 29, 2012, the Captain insulted him by telling him that he should put a bucket on his head; and
5. On October 31, 2012, Complainant was accused of taking the Captain's badge.
As corrective action, Complainant requested the termination of the Captain and the transfer of the Sergeant.
The pertinent record reveals the following facts. Complainant is African-American and described his skin color as medium to dark brown. Complainant's first and second line supervisors were not named in this complaint.
Claim 1 - October 15 Notice of Transfer
Complainant reported for duty at the start of the 2 PM shift on October 15, 2012. After roll call ended, Complainant was told that a named Captain (African American; skin tone similar to Complainant) ("Captain 1") wanted to see him in his office. Captain 1 told Complainant that there were several complaints against him and that he was transferring him to the Air and Space Museum, effective October 16, 2012. According to Complainant, Captain 1 told him he did not fit into the staff at the zoo, he was lazy and did not do his work.
Complainant called his immediate supervisor who told him that he was not aware of any transfer and tried to reassure Complainant.
Later that day, a Sergeant (African American; skin tone similar to Complainant) ("Sergeant 1") asked Complainant to again some to Captain 1's office to discuss the transfer. Complainant stated that the Captain 1 called the Chief of Police and put him on the phone, who confirmed that Complainant was being transferred. For another 45 minutes, Complainant claimed he was verbally attacked by Captain 1 and Sergeant 1. Complainant averred that the Captain told him that he was the "whitest Black man that worked there," was lazy and always late.
Complainant stated that he was distraught and went to the health unit. When his immediate supervisor reported in, the immediate supervisor spoke with Captain 1. Complainant was later informed that it was a prank. Complainant stated that it would have been funny if it had been five minutes, but this went on for hours. He was given an envelope with a hand-written note from Captain 1 that read, "Officer [Complainant]: You got jack! October - fool ..NZZP."
The Chief of Police stated that he was not aware that Complainant was being subjected to any type of harassment. He stated that he was aware that Captain 1 had informed Complainant of a transfer and thought that it simply a harmless joke.
The record shows that the work environment included joking and teasing and that Complainant often participated in the joking.
Complainant told his immediate supervisor on various occasions previously that he did not like how Captain 1 treated him, especially how he treated him in front to of the other police officers, but he did not allege race or color discrimination.
When asked why he thought it was race discrimination, he said "I can see no other explanation for this inappropriate behavior." ROI, p. 74.
After the October 15, 2012 incident, Complainant contacted an EEO Counselor and said things began to improve. RMO1 resigned a month later.
Claim 2-October 21- AWOL
Complainant called in to Sergeant 1, because Complainant was going to be late arriving. He spoke with Sergeant 1. When Complainant arrived, Sergeant 1 issued Complainant a notice of AWOL and counseling letter. When Complainant reminded him that he had called in two hours before his shift to let him know that he was stuck in traffic, Sergeant 1 told him that he "did not care and that he was not discussing it anymore and suggested that [Complainant] go and speak to EEO about that, also."
The record shows that Complainant contacted the Chief of Police, who met with Complainant regarding the AWOL charge. The Chief asked Complainant to provide him with a copy of his cell phone log in order to address the issue. After receiving a copy of the cell phone log, the Chief instructed Sergeant 1 to rescind the Letter of Counseling and remove the AWOL charge.
Sergeant 1 acknowledged that he had rescinded the counseling letter he had issued Complainant regarding the late arrival on October 21, 2012. He stated that Complainant was not charged with AWOL because "there was a discrepancy with the time his call was logged in."
Claim 3 - Told to move his car
It is undisputed that Sergeant 1 told Complainant to move his car on October 24, 2012. Sergeant 1 stated that Complainant was not the only one who was asked to move his vehicle. Although others were asked to move their vehicles, their vehicles remained parked. On October 28, 2012, another officer (not African-American) parked in the Assistant Chief's parking space for ten hours. Complainant stated that a third officer, who was not African-American, was parked beside his truck and did not move it. Sergeant 1's car was parked directly beside the truck. The other employee was not told to move his truck. No adverse actions were taken.
Claim 4 - October 29 Bucket Incident
The police officers received training on safety tips during stormy weather. When roll call started, Complainant became the focal point. He averred that, "on Monday, the Captain [Captain 1] suggested that I get a bucket and use it, for protection over my head during the storm." Complainant averred that the Sergeant [Sergeant 1] suggested to Complainant that he could "call Johnny Cochran if [Complainant] did not like it."
Claim 5 - October 31 Badge Incident
Captain 1 told another officer to call Complainant because he believed that Complainant had stolen his badge. Complainant called Sergeant 1 and informed him that he did not have anything that belonged to Captain 1. While Sergeant 1 was on the call with Complainant, Captain 1 took the phone away from Sergeant 1 and Captain 1 started yelling in Complainant's ear about the badge and told Complainant that he was going to put him in jail.
Complainant immediately reported this incident to his immediate supervisor. When asked why he believed this had happened, Complainant stated, "Because it's been the norm to disrespect others and to discriminate based on race. I have made complaints to EEO concerning the Captain's harassment and attacks against me." Complainant did not include retaliation in his complaint.
The record shows that the Office of Protective Services took measures to address the matters. The Chief addressed a Prevention of Workplace Harassment Policy Statement. The shift supervisors during roll call emphasized the Prevention of Harassment policy. Captain 1, who was primarily responsible for the prank, resigned from the Office of Protection Services on November 17, 2012. Sergeant 1 was provided additional training, including "EEO for Supervisors." The Office of Protection Services Area Manager, by Memorandum dated July 1, 2013 informed the Director of the Office of Equal Employment and Minority Affairs that she would continue to monitor the National Zoo Police Force and conduct impromptu inspections and meet with officers to ensure a Harassment free work environment.
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 requested a hearing on June 24, 2013, but the AJ denied the hearing request on the grounds that Complainant failed to submit a timely Request for Hearing. June 21, 2013 was the deadline for requesting a hearing.
The AJ concluded that Complainant's request for a hearing was untimely filed and that Complainant had not presented any justification for extending the thirty-day filing period. The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
Agency Decision
The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency found that Complainant's allegations did not amount to a hostile work environment because Complainant failed to establish that the conduct was based on his protected class. The Agency also found that the incidents were "not sufficiently severe or pervasive to have created an intimidating, offensive, or hostile work environment." The Agency reasoned that the incidents amounted to "simple teasing" and "offhand comments." The Agency also stated that the fact that the named officials were also African American and had similar complexions "lessens the chances that their behavior toward Complainant was motivated by discriminatory animus based on his protected classes." This appeal followed.
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 states that "[a]ll personnel actions affecting employees or applicants for employment in executive agencies shall be made free from any discrimination," based on race or color.
We note that Complainant was not reassigned. The letter of caution was rescinded and the AWOL was not issued. There was no apparent consequence to Complainant parking his car as he did. Although there was no evidence that any tangible, adverse personnel actions were taken against Complainant, the evidence shows that Complainant was subjected to a hostile prank in which a managerial official told Complainant that he was being transferred because he was an "unruly Nigga" and told that he was the "whitest Black man that ever worked there."
The comments were discriminatory on their face. Consequently, the record included direct evidence of discriminatory race and color based comments. Therefore, we find that the Agency erred when it applied an analysis requiring a prima facie showing, because such a showing is not required where there is direct evidence of discrimination. The Agency also erred when it found that Complainant failed to establish his prima facie Title VII claims because there was no evidence related to his race or color because all of the employees were of the same race and color. The record shows that he was treated differently and that his race and color were factors in the prank and comments made against him.
Moreover, we remind the Agency that federal agencies have a continuing duty to promote the full realization of equal employment opportunity in its policies and practices. 29 C.F.R. �1614.101.
Harassment / Hostile Work Environment
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create a hostile or abusive working environment." The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive" and the complainant subjectively perceived it as such. Harris, 510 U.S. at 21-22. 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." Id at 23.
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 experience by its target." Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998).
With respect to element (5), an agency is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee. See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). Where the harassment does not result in a tangible employment action, an agency can raise an affirmative defense, which is subject to proof by a preponderance of the evidence, by demonstrating: (1) that it exercised reasonable care to prevent and correct promptly any harassing behavior; and (2) that the complainant unreasonably failed to take advantage of any preventive or corrective opportunity provided by the agency or to avoid harm otherwise. See Burlington Industries, supra.
In this case, Complainant alleged that Agency supervisors harassed him by, among other things, playing a prank on him, making race / color-based derogatory comments, and telling him he should wear a bucket on his head. Complainant, however, acknowledged that he often engaged in joking banter with the police captain. Complainant stated that he would have found the prank funny if it lasted five minutes, instead of hours.
Generally, the Commission has repeatedly found that claims of a few isolated incidents of alleged harassment usually are not sufficient to state a harassment claim.
There is no evidence that Complainant exhibited discomfort with the atmosphere that permeated the workplace prior to the time that Complainant raised the issues with the EEO Counselor. Significantly, Complainant and the alleged responsible management officials named in the complaint are of the same race and described themselves as having similar skin color. Complainant further acknowledges that he had not complained of harassment based on his race or color to his immediate supervisor or the EEO Counselor.
Further, the evidence of record does not establish that the Chief knew that Complainant had been subjected to harassing conduct by Captain 1 or Sergeant 1. It is unfortunate that the Chief played along with the prank, but the Chief viewed it as a harmless joke at the time. There is no evidence of any adverse personnel action in this case. Finally, the record shows that the Agency took prompt corrective action, which Complainant concedes, stopped the harassment. Accordingly, we find that there is no basis for imputing liability to the Agency for the incidents that occurred before Complainant complained to the EEO Counselor.
For all of these reasons, we find that the Agency had an evidentiary basis for concluding that Complainant failed to prove discrimination by a preponderance of the evidence.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Decision finding no discrimination for the reasons set forth herein.
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
August 23, 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.
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