0120161102
06-28-2016
Miquel G,1 Complainant, v. John Kerry, Secretary, Department of State, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Miquel G,1
Complainant,
v.
John Kerry,
Secretary,
Department of State,
Agency.
Appeal No. 0120161102
Agency No. DOS-0154-15
DECISION
On February 17, 2016, Complainant filed an appeal from the Agency's January 19, 2016, 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 Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Audiovisual Production Specialist, GS-12, at the Agency's Harry S. Truman Building facility in Washington, DC.
On May 25, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of race (African-American, Native American) when he was subjected to a hostile work environment characterized by, but not limited to, negative and inappropriate comments, heightened scrutiny, and false accusations.
The Agency officials who allegedly discriminated against him were aware of his race.
Negative and Inappropriate Comments
The Department of State's Office of Civil Rights (S/OCR) conducted an administrative inquiry of Complainant because of allegations of a hostile work environment made by individuals at the White House. This inquiry was based on 3 FAM 1525/1526. As part of this investigation, Complainant's first-level supervisor was interviewed. Part of the reason Complainant believes he was subjected to a hostile work environment was because of things said by his supervisor during this inquiry.
Complainant stated that on November 5, 2014, his supervisor provided a statement to S/OCR in which he described Complainant as "very intimidating" both physically and vocally.2
Additionally, in his November 5, 2014 statement, Complainant's supervisor described Complainant as a "gym rat." Complainant maintains it is offensive to be known as a "rat."
Furthermore, Complainant believes his supervisor's comment, "Complainant was not an audio engineer but may think he is," in the supervisor's November 5, 2014 statement was a negative and inappropriate comment. Complainant maintains he has a degree in Audio Engineering and occasionally works in recording studies 2-3 days each week working for musical artists.
Finally, Complainant stated that on January 23, 2015, his second-line supervisor spoke to him harshly with profane language after Complainant questioned treatment he received from his first-level supervisor, but the second-level supervisor countered that did not remember this conversation and never had a conversation with Complainant about his first-line supervisor.
Heightened Scrutiny
Complainant was told in March/April 2013 to remove 50-75 boxes of sneakers he had been storing in the Flag Room in the Harry S. Truman Building. He had two days to move them, which he did. Complainant was reminded that State Department public facilities and storage areas are not for storage of personal items.
On a number of occasions, Complainant was questioned about his attire because he was dressed inappropriately, usually wearing sweat-shirts and pants, or informal foot wear. He was asked to change on a couple of occasions and was sent home from an event on February 18, 2015, because he was not in a suit.
False Accusations
Although it turned out to be false, Complainant was accused by another State Department employee of watching television while providing audio for the State Department daily press briefing. His supervisor, when giving his statement during the administrative inquiry on November 5, 2014, brought up this incident, relating that Complainant subjected the person who turned him in to harassment and potential workplace violence.
Further, in his November 5, 2014, statement during the administrative inquiry, Complainant's supervisor stated Complainant is "one to always skirt the rules" and "he will lash out at you, yell and scream at you when you confront him about something he did wrong. He will attack you."
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). In accordance with Complainant's request, 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.
ANALYSIS AND FINDINGS
To establish a claim of harassment a complainant must show that: (1) he or she belongs to a statutorily protected class; (2) he or she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with his or her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (Aug. 5, 1999); See also Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
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 Notice No. 915.002 (March 8, 1994).
Courts consider the totality of the instances of harassment rather than examining the instances piecemeal when determining if the acts are severe and pervasive enough to alter the conditions of the workplace. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23. This includes taking into account the frequency and severity of the alleged discriminatory conduct, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with Complainant's work performance. Harris, 510 U.S. at 23. Casual comments of accidental or sporadic conversation will not trigger equitable relief. Under Title VII, more than a few isolated incidents of harassment must have occurred. Faulkner v Dep't of Commerce, EEOC Appeal No. 01890522 (1989).
Here, using the five part test from McCleod, the Commission finds when looking at the facts most favorable to Complainant, he is still unable to satisfy the third prong of this test, "the harassment complained of was based on his statutorily protected class." Complainant failed to connect that the alleged comments were said because of his race.
Additionally, the supervisor's conduct when evaluated from the objective viewpoint of a reasonable person in the Complainant's circumstances does not rise to the level required to find that it altered the conditions of Complainant's workplace. The comments were neither severe nor pervasive enough to even trigger "isolated incidents of harassment" as described in Faulkner.
Although Complainant believes the alleged harassment occurred because his supervisor's ex-wife is dating an African-American man, the record is silent as to any proof that Complainant's job was negatively impacted because of the alleged hostile work environment and thus fails the fourth prong of the test as well, "the harassment had the purpose or effect of unreasonably interfering with his or her work performance and/or creating an intimidating, hostile, or offensive work environment."
A number of Complainant's contentions arose from his supervisor's November 5, 2014, statement given during a formal administrative harassment inquiry. The Commission has generally held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The proper forum to raise such challenges are within the proceeding itself. However, since the Agency did not dismiss for that reason, the Commission will not rule on it now in the instant appeal, but instead finds that Complainant has not shown how his reading of his supervisor's response to the administrative inquiry creates a hostile work environment.
Finally, the alleged comments by Complainant's first and second line supervisors when examined in their totality do not have the effect in frequency nor in severity to constitute harassment, let alone even rise to the level of a mere offensive utterance.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
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 tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. 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
June 28, 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.
2 Complainant stated that he is 6'4" tall.
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