Ryan L.,1 Complainant,v.Mick Mulvaney, Acting Director, Consumer Financial Protection Bureau, Agency.Download PDFEqual Employment Opportunity CommissionJul 17, 20180120160538 (E.E.O.C. Jul. 17, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ryan L.,1 Complainant, v. Mick Mulvaney, Acting Director, Consumer Financial Protection Bureau, Agency. Appeal No. 0120160538 Agency No. CFPB-2015-0011-F DECISION On November 2, 2015, 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 October 19, 2015, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Large Bank Examiner with the Agency’s Supervision, Enforcement, and Fair Lending (SEFL) Southeast Region, located in Jacksonville, Florida. On January 26, 2015, Complainant filed an EEO complaint alleging that the Agency subjected him to a hostile work environment based on race (“GLBT,” Caucasian, Native American), sex (sex stereotyping and sexual orientation), color (unspecified), and age (44) when: (a) in September 2014, an Enforcement Attorney, SEFL, Office of Enforcement (C1) screamed at Complainant during a conference call and accused Complainant of mistreating women of color; 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. 0120160538 2 (b) in September 2014, Complainant learned that C1 said in reference to him: “Love the sinner, hate the sin,” and that his “lifestyle” gave her pause with regard to his union leadership role; (c) in October 2014, C1 falsely accused Complainant of engaging in sex discrimination when he capitalized words in an email message; (d) in or around October 2014, Complainant informed the Senior Advisor, Office of Human Capital, Division of Operations (C2), and the Acting Lead for Employee and Labor Relations, Office of Human Capital, Division of Operations (C3), of continued harassment by C1 and informed them of C1’s various statements that Complainant was “abusive” and “mistreated” women; (e) in September 2014 and October 2014, C1 stated to an unidentified official or unidentified officials in the Agency’s Office of Civil Rights that Complainant was engaging in sex discrimination; and (f) in or around October 2014, C1 filed an unfair labor practice complaint against Complainant claiming he removed her as union steward because she is a woman.2 The Agency dismissed claims (e) and (f). The Agency concluded that both claims (e) and (f) failed to state a cognizable claim. See 29 C.F.R. § 1614.107(a)(1). We agree with the Agency and note that Complainant fails to dispute the dismissal of these claims on appeal. After 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 EEOC 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. FACTUAL BACKGROUND At the time of the events in question, Complainant was serving as President of Chapter 335, National Treasury Employees Union (NTEU), and he spent 100% of his official time performing union duties. Complainant asserts that C1 (Asian Indian, female, under 40) harassed him based on sex stereotyping and sexual orientation, because he believes she has a personal issue with Gay, Lesbian, Bisexual and Transgender (GLBT) people. The record shows that C1 has no organizational relationship to Complainant, but served with him on the Board of Directors of NTEU Chapter 335. C1 asserts that she has been experiencing ongoing harassment from Complainant and his male colleagues for over a year and had filed a complaint against him. 2 During the EEO investigation, Complainant asserted that he no longer believes that C1 was motivated by his color or age. Accordingly, this decision will not address those bases. 0120160538 3 Incident (a) Complainant asserts that during a conference call on September 14, 2014, C1 “inserted herself on the call, as she usually does” and accused the Chief Steward (CS) (male), the Chief of Staff (CoS) (male), and Complainant of “mistreating women.” According to Complainant, C1 spoke in a “hateful and adolescent tone several times with little or no provocation.” Complainant further asserts that C1 continually accuses him of mistreating women because she wants to engage in work that is beyond the scope of her position as Treasurer. Complainant claims that C1 made a similar accusation during a Chapter meeting held in July 2014. According to Complainant, C1 physically got out of her chair, hijacked the meeting, and verbally attacked him. Complainant asserts that C1’s accusations have placed his job in jeopardy and places him in the position to be scrutinized for false allegations to both management and third-party stakeholders outside the Agency. Complainant testified further that he reported the incident to C2 and C3. Complainant stated that he was told they could not get involved in internal union business. Complainant believes C1 harassed him specifically because of his “GLBT race,” and because of his sex, including sex stereotyping and sexual orientation. C1 asserts that she never screamed at Complainant and does not recall participating in a conference call in September 2014. C1 believes that Complainant is harassing and retaliating against her for raising legitimate concerns about his treatment of female employees at the Agency. She explains that Complainant has generally refused to participate in conference calls and has completely cut out the rest of the Chapter 335 Board, including all women. She further stated that in July 2014 she attended the Chapter’s annual meeting in Washington, D.C., where at least 30-40 other members were present. She asserts that nearly all members raised serious concerns about Complainant’s leadership abilities. C1 also affirms that she expressed her concerns to the National NTEU Representative (U1) (female), about the treatment of female stewards in the Chapter. Specifically, C1 claims that Complainant has bullied and threatened her and has retaliated against her for raising legitimate concerns about accountability, transparency, fairness, and discrimination. C1 further asserts that she followed the anti-harassment policy by reporting the harassment directly to Complainant at the July 2014 meeting. C1 describes several examples of incidents where Complainant allegedly made demeaning, pejorative, and sexist statements about women. For example, she notes that in November 2013, after reporting to Complainant that several minority female employees in her office were receiving failing performance ratings, he responded by stating: “You know how minority women are – they are really loud and have an attitude,” or words to that effect. C1 also asserts that Complainant referred to herself, a union steward (U2) (African-American, female), and the Chapter’s Field Vice President (VP2) (Caucasian, female) as “a few louds,” stating: “I’m not going to let a few louds hijack the union.” C1 also states that Complainant mocked and ridiculed her because of her race and sex on September 4, 2014, when, after she expressed an interest in decision-making as a Board 0120160538 4 member, he referred to her as “the mighty M****”3 and told her she did not deserve “a place at the table.” In addition, C1 states that Complainant includes only men in the decision-making process, and that he has excluded her from phone calls and used condescending and unprofessional language to address her. C1 further states that Complainant used the following phrases when terminating email conversations with women: “We are finished,” “Conversation Over,” “End of Discussion,” and “We do not need you.” C1 also asserts that when one female Board member expressed concerns to him, Complainant said he would “chalk [it] up to [her] emotion.” She stated that by contrast, he uses a respectful, professional tone when addressing men. C1 also notes another incident where a female employee reported to Complainant that she was being sexually harassed by CS, and that Complainant retaliated against her by copying, against her wishes, CS on his emails to her. A Compliance Examiner (C4) (Caucasian, male) testified that he has participated in various conference calls in which Complainant (in his capacity as a union official) and C1 were also on the call. C4 states that C1 tends to want to take over the conference call and lead it. According to C4, there were instances in which C1 yelled at Complainant and accused him of mistreating women of color. However, C4 believes that the relationship between Complainant and C1 is strained due to a personality conflict and he has no reason to believe that C1’s alleged conduct was motivated by Complainant’s race or sexual orientation/stereotyping. The documentary evidence which includes various emails between C1 and Complainant support C4’s position. Incident (b) Complainant asserts that he was told that C1 made the statement: “Love the sinner, hate the sin.” C1 denies making this statement and asserts that she is not a Christian and terms such as “sinner” and “sin” are not in her vernacular. In addition, she asserts that she does not ascribe to the concepts of “sinners” and “sin” in her culture or belief system. She further states that she has never said that Complainant’s “lifestyle” gave her pause, either. In his rebuttal testimony, Complainant also claims that C1 said to him, “[y]ou are nice R__.4 Let’s not fight though I do think your lifestyle makes you a weak leader.” Complainant identifies CS as a witness regarding this alleged comment. However, there is no affidavit from CS in the record to corroborate or contradict Complainant’s assertion.5 C1 responds by asserting that Complainant has a pattern and practice of falsely alleging that anyone who challenges him is homophobic. For instance, she states, on August 16, 2014, Complainant, by and through CS, posted a strange rant on the Chapter 335 blog to falsely claim that the entire Board (consisting of four other employees) disapproved of his “lifestyle.” Moreover, C1 affirms that she has never known anyone on the Board to ever disapprove of Complainant’s sexual orientation. C1 further asserts that she has never had any issues with it and 3 Complainant used C1’s first name in this alleged statement. 4 Complainant’s first name is used in this alleged statement. 5 CS, who was no longer an employee at the time of the EEO investigation, did not respond to the numerous attempts to obtain a statement and/or affidavit in this matter. 0120160538 5 notes that she even assisted Complainant with edits and feedback for his grievance against the Agency in which he alleged that he was denied a promotion due to his sexual orientation. C1 maintains that she would not have agreed to assist him if she harbored prejudicial feelings against him – nor would he have selected her to provide feedback.6 A Consumer Response Specialist and Chapter 335 steward (U3) (Caucasian, female) asserts that she heard from other people that C1 “and other people” may have made the comment: “Love the sinner, hate the sin.” However, she was not present when the alleged comment was made. U3 declined to identify the individuals that she says “may” have allegedly witnessed C1 making this comment because she does not have a full recollection due to the length of time that has elapsed since the remarks were allegedly made. U3 also states that she has no reason to believe that C1’s alleged remarks were motivated by Complainant’s race or sexual orientation/stereotyping. However, she states: “I believe [C1] subjected Complainant to discriminatory harassment based on his sexual orientation given that he is a gay man.” Incident (c) The record shows that in an October 2014 email, C1 accused Complainant of mistreating women because he capitalized the words “dues paying members” in an email. This email was prompted by several earlier email exchanges regarding the question of whether Complainant was accountable to the Chapter’s Board members. It was Complainant’s position that he was not accountable to the Board and it was C1’s position that he was accountable to the Board. Complainant asserts that the only reason C1 treats him differently than other leaders must be her bias regarding GLBT individuals. Complainant asserts that C1 makes it personal and dismisses his leadership skills even though he has been in the union for much longer. Complainant also states that if C1 disagrees with anyone (male, female, white, black) who can make the decision, she retaliates by claiming discrimination against women and women of color. Incident (d) Complainant testified that in or around October 2014, he notified C2 and C3 by email of the alleged harassment that he was experiencing by C1. Complainant also asserts that he received a response from the Labor Relations office advising him that the matters complained of involved Union activity and are not covered under EEO guidelines. He states that no actions were taken because of his notice. 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, 6 Complainant does not rebut C1’s assertions. 0120160538 6 § 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”). 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 classes; (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). 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 v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). Therefore, in order to establish his harassment claim, Complainant must show 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 a protected basis. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. The Agency argues that Incidents (a) and (c) do not rise to a cognizable claim as they describe conduct that amounts to protected EEO activity by C1. However, we assume for the purposes of this decision that the alleged conduct by C1 is reviewable. Upon review of the record, we find that Complainant failed to present sufficient evidence to prove, by a preponderance of the evidence, that C1 was motivated by Complainant’s race or sexual orientation.7 There is corroborating documentary evidence to support C1’s assertions that her conduct was motivated by her reasonable belief that Complainant held bias against her based on her sex. However, there is insufficient evidence to corroborate Complainant’s allegations that C1 was biased against him because of his sexual orientation. Neither Complainant, nor his witnesses have direct knowledge of his claim that C1 made the statement “Love the sinner, hate the sin.” In addition, the record is devoid of corroborating documentary or testimonial evidence to support Complainant’s assertion that C1 made the statement that Complainant’s lifestyle made him a weak leader. As Complainant chose not to request a hearing, the Commission does not have the benefit of an Administrative Judge’s findings of facts or credibility determinations after a hearing. 7 While Complainant claims that one of the bases of his discrimination claims is race as a member of the LGBT community, we note that LGBT status is more accurately described as sex (sexual orientation) rather than race. 0120160538 7 Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. Accordingly, we find to the extent that C1 acted in a hostile and/or unprofessional manner toward Complainant, such conduct was motivated by personality conflicts, including the belief that Complainant held animus toward her because she is a woman. 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 that Complainant did not establish that he was discriminated against as alleged. 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), 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. 0120160538 8 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, Director Office of Federal Operations July 17, 2018 Date Copy with citationCopy as parenthetical citation