0520120004
12-21-2011
Alvario V. Richards, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (U.S. Secret Service), Agency.
Alvario V. Richards,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(U.S. Secret Service),
Agency.
Request No. 0520120004
Appeal No. 0120093149
Hearing No. 570-2009-00185X
Agency No. HS-07-USSS-002582
DENIAL
Complainant timely requested reconsideration of the decision in Alvario
V. Richards v. Department of Homeland Security, EEOC Appeal No. 0120093149
(Aug. 25, 2011). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision
where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(b).
BACKGROUND
Complainant was accused of sexually harassing a female subordinate
employee. The Agency investigated the sexual harassment allegations,
during which time Complainant admitted asking the female employee about
her bathing suit, asking if she would provide him with a picture of her
in the bathing suit, photographing the employee with his personal cell
phone, and asking her if she ever dated a black man. After finishing the
investigation, the Agency suspended Complainant for 14 days for conduct
unbecoming a Secret Service Assistant to the Special Agent in Charge.
In the previous decision, the Commission determined that the Agency
did not discriminate against Complainant on the bases of sex (male),
race (African-American), and reprisal for prior EEO activity, when it
suspended Complainant for 14 days; reprimanded him for sending an email
containing disrespectful, discourteous, and unprofessional comments; and
flew him to Washington, D.C. to be interviewed for three hours regarding
the allegations, which he maintained were baseless. The Commission found
that the Agency articulated legitimate, non-discriminatory reasons for
its actions and that Complainant failed to show pretext.
In his request to reconsider, Complainant argues that the previous
decision involved a clearly erroneous interpretation of law, in light of
the recent Seventh Circuit Court of Appeals decision, Rogers v. White,
2011 WL 4349464 (7th Cir. Sept. 2, 2011). Complainant essentially
argues that under White, the Agency subjected him to disparate
treatment because it disciplined him more severely for misconduct than
the female subordinate employee, whose “conduct was no different”
from Complainant’s. In other words, the Agency did not enforce its
disciplinary rules and policies in an evenhanded manner when it suspended
Complainant for 14 days while not suspending the female subordinate
employee for being “untruthful” and engaging in “suggestive
behavior.”
ANALYSIS
In essence, Complainant attempts to repackage his initial arguments which
were raised on appeal, that the female subordinate was not subjected
to “unwelcome” sexual conduct because she incited the conduct and
was not credible, into a new argument that Complainant was punished more
severely than his accuser for engaging in similar misconduct, under White.
We find this argument unpersuasive.
First, as a chronological matter, the previous decision could not have
clearly erred in interpreting the law under White because White had not
yet been issued at the time of the previous decision.
Second, even if we were to now consider White as possibly persuasive
authority, we disagree with Complainant’s contention that White
presents an issue “of striking importance in federal sector EEO
cases, and therefore, warrants reconsideration by the Commission.”
White merely reiterates what the Commission has long held regarding
disciplinary decisions based on employee misconduct: employers must
enforce disciplinary rules and policies in an evenhanded manner. See,
e.g., EEOC Compliance Manual, EEOC No. 915.003, at 15-51 (Apr. 19, 2006)
(“Discipline and discharge decisions are typically based on either
employee misconduct or unsatisfactory work performance. Such rules
and policies regarding discipline and discharge must be enforced in an
evenhanded manner, without regard to race.”)
In cases where a complainant has been accused of sexual harassment
and alleges that the employer’s subsequent disciplinary actions
were discriminatory, the complainant can establish a prima facie case
of disparate treatment by identifying other employees, not in the
complainant’s protected class, who were similarly accused of sexual
harassment and were disciplined less harshly than the complainant. See,
e.g., Warren v. U.S. Postal Serv., EEOC Appeal No. 01A45314 (Feb. 27,
2006).
Here, in attempting to compare his disciplinary treatment with that of the
female subordinate employee who credibly accused him of sexual harassment,
Complainant offers a deeply flawed comparison. Complainant fails to
identify other employees, outside of his protected classes, who were
similarly accused of sexual harassment and were treated more favorably
than himself. The record confirms that the Agency undertook corrective
action to address specific allegations of sexual harassment that an
employee presented to management.1 Complainant has not established that
these actions were a pretext to mask discrimination.
After reviewing the previous decision and the entire record, the
Commission finds that the request fails to meet the criteria of 29
C.F.R. § 1614.405(b), and it is the decision of the Commission to deny
the request. The decision in EEOC Appeal No. 0120093149 remains the
Commission's decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission’s decision. 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.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time limits
as stated in the paragraph above (“Right to File a Civil Action”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_12/21/11_________________
Date
1 We note that federal agencies have a duty to investigate allegations
of sexual harassment. Moreover, in Rogers v. Department of Defense,
EEOC Request No. 05940157 (February 24, 1995), the Commission found that
a claim which arose from the agency’s investigation of a complaint
of harassment, failed to state a claim, since the agency was legally
obligated to investigate a complaint of harassment.
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0520120004
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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