[Redacted], Gaylord I., 1 Complainant,v.Michael S. Regan, Administrator, Environmental Protection Agency, Agency.

Equal Employment Opportunity Commission

Mar 21, 2022

Appeal No. 2020005033 (E.E.O.C. Mar. 21, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gaylord I.,1 Complainant, v. Michael S. Regan, Administrator, Environmental Protection Agency, Agency. Appeal No. 2020005033 Hearing No. 450-2018-00002X Agency No. 2016-0117-R06 DECISION On September 9, 2020, 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 June 14, 2019, final order 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Human Resources Specialist, GS 13 at the Agency’s Regional Office in Dallas, Texas. On October 24, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and reprisal (association with a coworker who filed an EEO complaint) under Title VII of the Civil Rights Act of 1964 when: 1. On July 13, 2016, Complainant’s first-line supervisor (Supervisor 1) reassigned some or all of Complainant’s work to another employee; 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 2020005033 2. As recent as July 8, 2016, Supervisor 1 frequently excluded Complainant from relevant meetings and denied Complainant access to information needed to perform the essential functions of his job; 3. In February 2016, Complainant’s second-line supervisor (Supervisor 2) prevented him from leaving a co-worker’s office by blocking the exit; 4. In February 2016, Supervisor 2 questioned Complainant’s candidacy for a detail opportunity and discouraged him from seeking the opportunity; 5. In February 2016, Supervisor 2 questioned Complainant in a threatening manner; 6. In February 2016, Supervisor 2 stated, “it is not in the organization’s best interest” to have Complainant compete for a detail opportunity; and 7. Sometime in February 2015, Supervisor 1 made an offensive comment about Complainant’s weight in the presence of other employees. The Agency accepted the complaint for investigation. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. On May 7, 2019, the AJ assigned to the case issued a Notice of Intent to Issue Summary Judgment (NOI), informing the parties that she had determined that the case may be appropriate for summary judgment. The NOI described the grounds upon which the AJ based her determination that the case should be summary judged. The AJ informed the parties that unless a party demonstrated that there was a genuine issue of material fact in dispute, no hearing would be held in this matter. The Agency and Complainant filed responses to the NOI in a timely fashion. The Agency also submitted a timely reply to Complainant’s response to the NOI. According to Complainant, management harassed him because of his “association” with a Coworker (Coworker) even though he had not engaged in prior EEO activity and had no involvement with Coworker’s EEO proceeding. ROI at 106. The AJ stated that the facts did not support Complainant’s reprisal claim. The AJ noted that there was no evidence of the existence of a close relationship between Complainant and Coworker. She observed that Complainant and Coworker work in different departments and had tangential contact in the workplace. According to the AJ, Complainant’s “presumption” and “perception” that management harbored animus towards him because of Coworker’s open EEO claim was insufficient to support a finding that Complainant engaged in “protected activity.” Therefore, the AJ asserted, as a matter of law, Complainant’s reprisal allegations failed. The AJ did not further addressed reprisal in the NOI. 3 2020005033 Complainant also alleged that he was subjected to harassment and a hostile work environment based on his race. Regarding claim 1, the AJ determined that Supervisor 1’s insistence that none of Complainant’s work duties were permanently reassigned to another employee (Employee 1) were supported by record evidence. Regarding claim 2, the AJ determined that the evidence showed that Complainant was never denied the opportunity to attend relevant staff meetings and never denied access to his job description. The evidence further revealed that, on one occasion Employee 1 was tasked with attending a meeting of a highly sensitive nature. According to the AJ, because that meeting necessarily involved examination and classification of job descriptions, Complainant was not invited to attend based on his representation to Supervisor 1 that he did not know how to classify a position description. The AJ also noted that the record revealed that, although Complainant volunteered to participate in a mid-year review of Recent Graduates, Complainant and all those who volunteered to partake in the review did not do so because a Regional Trainer (Employee 2) and a Training Officer had already met with these graduates as part of a mid-year assessment. Claim 7 involved Complainant’s allegation that Supervisor 1 referred to him as “fat” when Complainant, who was partially blocking the view at a meeting, was asked to move. The AJ stated that even if Complainant’s version of events was believed, there was no evidence that Supervisor 1 made the comment about Complainant’s weight because of his race. Significantly, the AJ observed, Complainant never attempted to link his race to Supervisor 1’s alleged offensive comment. Instead, the AJ asserted, Complainant declared that Supervisor 1 intended to “hurt his pride and make him feel that he was not worthy.” The AJ determined that a reasonable fact-finder could reasonably deem Supervisor 1’s comment to be distasteful and insulting, but would not, under the circumstances, conclude that the conduct was linked to Complainant’s race or rose to the level of creating a hostile work environment based on that protected trait. Regarding claims 3, 4, 5, and 6, Employee 2 (witness to the alleged incident), asserted that Complainant and Supervisor 2 discussed a detail opportunity. Supervisor 2 had asked Complainant how he felt about applying for the position when Complainant had been with the Agency for a relatively short period of time. Employee 2 recalled Complainant’s response that he was qualified for the detail and would do a “good job” if selected. According to Employee 2, Supervisor 2 wished Complainant “good luck” and left her office. ROI at 214. The AJ determined that there was no corroborative evidence supporting Complainant’s position that Supervisor 2 blocked the exit to Employee 2’s office or otherwise attempted to discourage Complainant’s application for the detail because of his race. Significantly, the AJ observed, Complainant did not attempt to connect his race to the conduct that he attributed to Supervisor 2 as racially motivated in nature. The AJ concluded that summary judgment in favor of the Agency was appropriate because viewing the evidence in the light most favorable to Complainant, the totality of the evidence did not support Complainant’s position that he was subjected to unlawful harassment. 4 2020005033 Over Complainant's objections, the AJ issued a decision without a hearing on June 14, 2019. When the Agency failed to issue a Final Order, the AJ’s decision became the Agency’s Final action. This appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contests the AJ’s finding, asserting that his claims were addressed as separate incidents as opposed to one claim of a pattern of hostile work environment and retaliatory harassment. Complainant’s main argument is that he has been “marginalized, including his exclusion from meetings and having his work given to others,” in retaliation for his perceived association with Coworker who had pending charges against Complainant’s managers. Complainant bases his argument on his assertions, without evidence, that Supervisor 1 repeatedly warned Complainant to stay away from Coworker because she had EEO claims and was disfavored by Agency management. In addition to the retaliation argument, Complainant asserts that he established race-based harassment. He argues that Supervisor 1’s reassignment, exclusion of Complainant from meetings, and the fact that both Complainant and Coworker were African-American while Supervisor 1 was Hispanic, would be the focus of his discovery should Complainant’s case have been permitted to proceed to hearing. Complainant requests that the AJ’s dismissal be reversed and the case remanded for further processing, including hearing. The Agency did not submit an Appeal statement. STANDARD OF REVIEW In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See Id. at Chapter 9, § VI.A. (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”). 5 2020005033 ANALYSIS AND FINDINGS AJ’s Issuance of a Decision without a Hearing We determine whether the AJ appropriately issued the decision without a hearing. 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. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant argued that he established his claims of race-based harassment and a hostile work environment based on retaliation. However, Complainant failed to describe any new evidence that would be proffered at a hearing that would further develop the record in this case. Neither does he identify any genuine issues of material fact in dispute. Therefore, summary judgment was appropriate in this case. Harassment (Hostile Work Environment) and Retaliatory Harassment To establish a claim of 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 to the employer. See 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 at 6 (Mar. 8, 1994). 6 2020005033 Here, Complainant alleged that he worked in a hostile work environment. He alleged that Supervisor 1’s reassignment, exclusion of Complainant from meetings, and the fact that both Complainant and Coworker were African-American while Supervisor 1 was Hispanic is adequate basis for his harassment claims. However, this is not the type of severe or pervasive management conduct that would constitute actionable harassment. See Complainant v. Dep't of Treasury, EEOC Appeal No. 0120130880 (Feb. 27, 2015) (finding, in pertinent part, that removal from assignment, and denial of workplace flexibilities was not severe or pervasive). More importantly, Complainant failed to show a nexus between the alleged actions and his protected race category. Therefore, Complainant’s hostile work environment claims fail. Complainant also asserted that the “heart” of his case concerns his allegation that he has been “marginalized, including his exclusion from meetings and having his work given to others in retaliation for his “perceived association” with Coworker.” See Appellant’s Statement in Support of His Appeal at 4. To ultimately prevail in his claim of retaliatory harassment, Complainant must show that he was subjected to conduct sufficient to dissuade a “reasonable person” from making or supporting a charge of discrimination. See Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53, 57 (2006); EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004, § II(B)(3) & n. 137 (Aug. 25, 2016). Only if both elements are present, retaliatory motivation and a chilling effect on protected EEO activity, will the question of Agency liability for reprisal-based harassment present itself. See Janeen S. v. Dep't of Commerce, EEOC Appeal No. 0120160024 (Dec. 20, 2017). We find no bases for Complainant's retaliatory harassment claim as he has not established that the alleged incidents occurred because of any purported protected EEO activity. Nor does the record indicate that Complainant was in any way involved in Coworker’s EEO pending complaint. Complainant may have worked with Coworker, been friends with her, and even sometimes had lunch with her. However, Complainant is not within the “zone of interests” contemplated by the decision in Thompson v. N. Am. Stainless, LP, 562 U.S. 170 (2011) (holding that an employee’s association with a “close family member” could trigger protection under Title VII’s anti-retaliation clause if an employer harms the employee because of his/her close relationship with the employee who had filed an EEO complaint). Therefore, Complainant does not prevail. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the AJ’s decision. 7 2020005033 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if 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, a 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). 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). 8 2020005033 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 March 21, 2022 Date