[Redacted], Henry S., 1 Complainant,v.Deb A. Haaland, Secretary, Department of the Interior (Bureau of Reclamation), Agency.

Equal Employment Opportunity Commission

Feb 14, 2023

Appeal No. 2021004467 (E.E.O.C. Feb. 14, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Henry S.,1 Complainant, v. Deb A. Haaland, Secretary, Department of the Interior (Bureau of Reclamation), Agency. Appeal No. 2021004467 Hearing No. 550-2017-00586X Agency No. DOI BOR-16-0635 DECISION 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 August 3, 2021, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Hydro Mechanic at the Agency’s Grand Coulee Power Office in Grand Coulee, Washington. On December 5, 2016, Complainant filed an EEO complaint alleging that he was subjected to a hostile work environment by several coworkers based on his age (49) and disability (physical), and in reprisal for prior protected EEO, and his Supervisor did not stop the harassment. 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. 2021004467 2 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 EEOC Administrative Judge. 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 Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. Complainant did not submit a statement in support of his appeal and only provided a copy of his May 7, 2021 deposition.2 The Agency opposed Complainant’s appeal. 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 (EEO MD-110), at Chap. 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”). Harassment Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of a complainant's employment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of harassment, Complainant must show that: (1) he belongs to 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 statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with his 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 Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). Complainant testified that he belongs to protected classes based on his age, disability, and prior EEO complaint, and that he was subjected to unwanted conduct. Complainant Deposition at 16, 17, 19. 2 Complainant did not complete an affidavit for his EEO complaint, despite repeated communications from the EEO Investigator. ROI at 109-28. 2021004467 3 However, there is no evidence to show that the complained of actions were due to his protected bases. Rather, Complainant testified that he believed that the actions were due to coworkers’ jealousy of his painting abilities. Complainant added that one alleged harasser was most likely jealous because Complainant was painting over his uncle’s work. Id. at 27-8, 30-1. Complainant also believed that his coworkers were also motivated to harass him in retaliation for his earlier EEO complaint. Id. at 57-8. 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). Even assuming a retaliatory motive, we find that the alleged harassment of “destroying” Complainant’s paint work; honking at Complainant; and “bumping” his things would not deter a reasonable person from engaging in EEO activity. Complainant Deposition at 23, 58. In addition, in a case of coworker harassment, an agency is responsible for acts of harassment in the workplace where the agency (or its agents) knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (June 18, 1999). See Jones v. Dep’t of Labor, EEOC Appeal No. 01A41672 (Oct. 22, 2004) (management official’s failure to address an ongoing tense situation between the complainant and a co-worker based on her protected class stated a claim under Title VII). A review of the record shows that the management officials took immediate and appropriate action in response to Complainant’s allegations of harassment. For example, Complainant’s Supervisor explained that Complainant reported finding a scraping by a cart on a wall that he painted. The Supervisor took photos and contacted the Employee who was responsible for the cart. The Employee admitted to unintentionally scraping paint in the past due to tight spaces. The Supervisor noted that the paint on the Employee’s cart was not fresh, and he examined all the carts and discovered that most had similar paint scrapings. ROI at 142, 177. Complainant also informed the Supervisor when he discovered that someone had knocked over his table, chair, and other items. The Supervisor took photos but was unable to determine the perpetrator. The Supervisor added that, each time Complainant reported an issue, he usually takes photographs and conducted an investigation. However, there were no witnesses, and they were unable to identify those responsible. ROI at 143-4. 2021004467 4 When Complainant complained of two coworkers harassing him as they drove by, Complainant’s second-line supervisor took statements from the named employees and noted that they denied making inappropriate comments to Complainant.3 One employee explained that he sang and clapped at work every day, and Complainant clapped back so he thought they were “playing.” The other employee corroborated that Complainant returned the clapping and they laughed because they thought someone was participating with them in clapping, and he averred that they did not say anything to Complainant. Both employees denied an intent to harass Complainant. ROI at 151, 157-8. To the extent that Complainant alleged that he was unable to perform overtime because he would have to work with his alleged harassers, the Supervisor responded that he informed Complainant that he would not have to work overtime with them, but Complainant still declined overtime. ROI at 144. We find that management officials acted properly when addressing Complainant’s allegations, and Complainant acknowledged that the Supervisor “has done an outstanding job of addressing my concerns.” ROI at 176. Accordingly, we find that Complainant did not establish that he was subjected to unlawful harassment based on his age or disability, or in reprisal for prior EEO activity. 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 finding no discrimination. 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. 3 In his deposition, Complainant alleged that they called him a “fucking punk.” Complainant Deposition at 30. However, when Complainant initially emailed his supervisors to report the incident, he claimed that they called him “weak.” ROI at 155. 2021004467 5 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). 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. 2021004467 6 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 February 14, 2023 Date