Emil L.,1 Complainant,v.David S. Ferriero, Archivist of the United States, National Archives and Records Administration, Agency.

Equal Employment Opportunity Commission

Mar 14, 2019

2019000831 (E.E.O.C. Mar. 14, 2019)

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

Emil L.,1
Complainant,

v.

David S. Ferriero,
Archivist of the United States,
National Archives and Records Administration,
Agency.

Appeal No. 2019000831

Hearing No. EEOC No. 560-2017-00022X

Agency No. 1610STL

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 14,
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 Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

During the period at issue, Complainant worked as an Archives Aide, 1421, GS-3 at the
Agency’s Records Retrieval Branch at the National Personnel Records Center (NPRC") in St.
Louis, Missouri.

On February 8, 2016, Complainant filed a formal complaint claiming that the Agency subjected
him to harassment (sexual and non-sexual) and discrimination based on race (African-
American), sex (male), and disability (contact dermatitis) when:

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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1. on September 16, 2015, his second-line supervisor (“S2”) (African-American,
female)2 called him into her office and commented that he had really nice hair and
that she had heard he was really “hot stuff;”

2. on October 2, 2015, Complainant’s second-line supervisor danced provocatively
in the doorway of her office while looking at him;

3. on September 16, 2015, Complainant was told that upper management was upset
with him for proving a doctor’s note and when, subsequently, Complainant was
reassigned to the Search Section on October 12, 2015;

4. on October 21, 2015, Complainant’s second-line supervisor hovered over the
sign-in sheet to prevent him and other employees from signing in on time;

5. on October 23, 2015, Complainant’s second-line supervisor banned him from
coming into the Records Distribution Area (“RDA”) where he used to work; and

6. on October 26, 2015, Complainant’s second-line supervisor yelled at him and
berated him for sending an e-mail that he had an appointment to meet with a
union representative.

After an 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 timely requested a hearing.
The Agency moved for a decision without a hearing. On August 20, 2018, the AJ issued a
decision by summary judgment, over Complainant’s objection, in favor of the Agency.

On September 14, 2018, the Agency issued a final order adopting the AJ’s finding of no
discrimination.

The instant appeal followed. On appeal, Complainant does not appear to dispute to dispute the
merits of the AJ’s decision. Complainant reiterates, through his representative, his argument that
he was sexually harassed by his immediate supervisor. Complainant further argues that his
immediate supervisor “retaliated” against him when she “berate[d] him for seeking Union
representation, tried to have him banned from a particular area in the section he worked in, and
got upset when he provided a doctor’s statement reassigning him to another section.”

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

2 S1 clarifies in her affidavit that she is actually Complainant’s first-line supervisor.
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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. If a case can only be resolved by weighing conflicting evidence, summary
judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly
consider summary judgment only upon a determination that the record has been adequately
developed for summary disposition.

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 does
not assert, on appeal, any facts that are in dispute, nor does Complainant address the merits of the
AJ’s decision on appeal.

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.
Therefore, we find that the AJ properly issued a decision here by summary judgment.

Disparate Treatment (Claims 3 and 5)

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail,
he or she must first establish a prima facie case of discrimination by presenting facts that, if
unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S.
at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the
agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its
burden, the complainant bears the ultimate responsibility to persuade the fact finder by a
preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St.
Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
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evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

The AJ’s analysis for claim 3, Complainant’s reassignment to the Search Section, was confined
exclusively to a determination that Complainant did not establish a prima facie case of disparate
treatment based on his disability.3 The AJ then determined that Complainant “ has failed to
demonstrate an evidentiary link sufficient to establish an inference of discrimination with respect
to his reassignment (claim 3) and the Agency’s directive to stay out of the RDA office space
(claim 5).”

Our review of the record indicates that the Agency also provided legitimate non-discriminatory
reasons for its actions, even though the AJ did not expressly address this analysis.

Regarding claim 3, the Lead Archives Technician (“Lead AT”) testified that Complainant
“volunteered to go to the Search Section” because the Records Distribution Area (“RDA”) was
“a bit overstaffed.” The Lead AT explained that Complainant volunteered to be reassigned to the
Search section before the September 16, 2015 meeting had occurred. The Lead AT stated that
Complainant indicated that he wanted to volunteer to “keep down the confusion.”

In his affidavit, Complainant testified that he was reassigned to the Search Section on October
12, 2015. In his deposition, Complainant stated that he had initially volunteered to be
reassigned. Complainant, however, changed his mind after he learned that the reassignment was
permanent. Complainant further explained that during the period of his reassignment, half of the
RDA employees were also reassigned to the Search Section even though they did not volunteer
to be reassigned. Complainant further explained that all the reassigned RDA employees except
one were African American, two were female, and to Complainant’s knowledge, none of the
reassigned RDA employees had a disability.

Regarding claim 5, the Lead AT testified that Complainant was “told that he should not come
back into the section” because S2 “did not want [Complainant] or anybody else who had worked
in that section to come back to that section.” The Lead AT explained that there was “nothing
unusual about” this request because there were issues where employees would “hang around” the
RDA “while on break” and management “did not want them to do that.”

In his deposition, Complainant acknowledged that all employees, not just Complainant, who
transferred out of the RDA were instructed not to return to RDA.

3 We presume, without so finding, that Complainant is a qualified individual with a disability.

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We conclude that neither during the investigation, nor on appeal, has Complainant proven, by a
preponderance of the evidence, that these proffered reasons for the disputed actions were a
pretext for unlawful discrimination based on his race, sex, or disability.

Hostile Work Environment: Non-Sexual Harassment (Claims 3 and 5)

To establish a claim of discriminatory hostile 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).

In other words, to prove her 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. Complainant must also prove
that the conduct was taken because of his protected basis – in this case his race, sex, or disability.
Only if Complainant establishes both of those elements – hostility and motive – will the question
of Agency liability present itself. Here, as discussed below, Complainant simply has provided
inadequate evidence to support her claim that his treatment was the result of his race, sex, or
disability.

As discussed above, we found that Complainant did not establish, with respect to claims 3 and 5,
a case of discrimination on any of his alleged bases. Further, we conclude that a case of
harassment is precluded for this claim based on our finding that Complainant failed to establish
that any of the actions taken by the agency were motivated by his protected bases. See Oakley v.
U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).

Hostile Work Environment: Non-Sexual Harassment (Claims 4 and 6)

As already noted, to establish a claim of harassment, 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 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 to the employer. Humphrey v. U.S. Postal Service,
EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11 Further, the incidents must
have been “sufficiently severe or pervasive to alter the conditions of [Complainant's]
employment and create an abusive working environment.” Harris, 510 U.S. at 21. The
harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in
the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC
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Notice No. 915.002 (Mar. 8, 1994) (Enforcement Guidance on Harris). 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). The anti-
discrimination laws are not a “general civility code.” Id.

We find that the AJ’s determination, that claims 4 and 6 fail to support a finding that the Agency
subjected Complainant to discriminatory harassment, was proper.

Regarding claim 4, S2 stated that she and the Lead Technician in the Records Distribution Area
(“Lead RDA”) looked at the time sheet “to ensure employees signed in and out.” S2 explained
that she and the Lead RDA “were having issues with employees not signing in and out for
lunch.” S2 further stated that she and the Lead RDA would “move out the way” when an
employee signed in.

The Lead RDA testified that she, S2, and other Leads “would stand by the sign-in sheet to make
sure that people were signing in properly.” The Lead RDA indicated that there were concerns
when employees would arrive at 6:15 but sign-in at 6:00, and there were also concerns with
employees signing in and out for lunch. The Lead RDA denied ever witnessing S2 getting in
anyone’s way or keeping any employee from promptly signing in.

Complainant stated in his affidavit and in his deposition that he was still able to sign-in on time
despite S2 allegedly withholding the sign-in sheet on October 21, 2015.

Regarding claim 6, Complainant testified that S2 called him and his union representative into his
office and S2 and the union representative “got into an argument” about how employees should
request union time “which resulted in an ADR session between [S2 and the union
representative].”

We find that considering these allegations, even if true, Complainant has not shown evidence
that considerations of his race, sex, or disability motivated management’s actions toward
Complainant. The record indicates that several management officials monitored the sign-in sheet
to ensure that all employees, not just Complainant, were signing in properly, and Complainant
was not adversely affected by these actions. Additionally, the alleged October 26, 2015
altercation did not involve a disagreement between S2 and Complainant. We note that even if S2
had berated Complainant on October 26, 2015, this was an isolated incident. We have held that
claims of 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 and Human Services, EEOC Request No. 05940481 (Feb. 16, 1995). We
further find that these incidents Complainant alleges are not sufficiently severe or pervasive as to
constitute hostile work environment/harassment under Commission regulation. The incidents
involved are of a type that typically arise out of workplace conflicts or communications.
However, EEO laws are not a civility code. Rather, they forbid “only behavior so objectively
offensive as to alter the conditions of the victim’s employment.” Oncale, 523 U.S. 75, 81
(1998). After careful review of the record, including Complainant's contentions on appeal, we
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find that Complainant failed to demonstrate that the Agency discriminated against him as
alleged.

Hostile Work Environment: Sexual Harassment (Claims 1-2)

To establish a case of sexual harassment creating a hostile work environment, Complainant must
show, by a preponderance of the evidence, that: (1) he belongs to a protected class; (2) he was
subjected to unwelcome sexual advances, requests for sexual favors, or other verbal or physical
conduct of a sexual nature; (3) the harassment complained of was based on sex; (4) the
harassment affected a term or condition of employment, either unreasonably interfering with the
work environment or creating an intimidating, hostile, or offensive work environment; and (5)
there is a basis for imputing liability to the employer. 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. See
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993); Henson v. City of Dundee, 682 F.2d 897
(11th Cir. 1982); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No.
915.002 (Mar. 8, 1994).

We find that the AJ’s determination, that claims 1 and 2 fail to support a finding that the Agency
subjected Complainant to sexual harassment, was proper.

Regarding claim 1, S2 testified that she told Complainant that she “liked his locs” and denied
that this compliment was sexual. S2 further denied stating that Complainant was “hot stuff.”

The Lead AT, a witness to the conversation between S2 and Complainant, also testified that S2
stated that she “liked [Complainant’s] braids.” The Lead AT further stated that he did not hear
S2 call Complainant “hot stuff.”

Regarding claim 2, S2 testified that she “did not dance in the door.” A coworker (“CW1”)
Complainant identified as present during this alleged incident testified that she did not remember
S2 dancing on October 2, 2015.

We note that the individuals Complainant identifies as witnesses for the alleged incidents in
claims 1 and 2 both fail to corroborate that these incidents occurred as Complainant alleges.
Thus, there is no evidentiarily support in the record, aside from Complainant’s testimony, to
substantiate these claims. However, even if true as alleged, Complainant has failed to
demonstrate that these incidents subjected him to discriminatory sexual harassment. S2
explained that that her comment about Complainant’s “locs” was nothing more than a
compliment and she denied dancing the door way. Additionally, these claims involve isolated
incidents. We have held that claims of 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 and Human Services, EEOC Request No.
05940481 (Feb. 16, 1995). Further, Complainant has not shown that his term or condition of
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employment was adversely affected by these isolated incidents. Therefore, Complainant has
failed to establish that the Agency subjected him to discriminatory sexual harassment.

The Administrative Judge's issuance of a decision without a hearing was appropriate and a
preponderance of the record evidence does not establish that discrimination occurred.

New Basis First Raised on Appeal (reprisal)

Finally, we note that on appeal Complainant raises a new basis. Specifically, Complainant
asserts that S2 retaliated against Complainant. There are circumstances in which we allow the
addition of a new basis of discrimination to a formal complaint on appeal. The circumstances of
this case, however, do not support such an outcome. Absent a compelling reason, a complainant
may not add a new basis on appeal. See Valdez v. USPS, EEOC Appeal No. 01A00196 (May
11, 2000) (citing Wodjak v. Department of the Treasury, EEOC Appeal No. 01952240 (March
27, 1997)). Complainant clearly indicated in her formal complaint, as reflected in the Report of
Investigation, that she was subjected to sex, race, and disability discrimination. At no point did
Complainant indicate that she wanted to add the basis of reprisal. Complainant had ample
opportunity to add the basis of reprisal prior to appeal. Therefore, we determine that
Complainant may not add the basis of reprisal to her formal complaint on appeal.

The Agency's final order implementing the AJ's finding of no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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),
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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.
Complainant’s request 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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

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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 14, 2019
Date