Complainantv.Sally Jewell, Secretary, Department of the Interior (National Park Service), Agency.

Equal Employment Opportunity CommissionJul 18, 2014
0120120969 (E.E.O.C. Jul. 18, 2014)

0120120969

07-18-2014

Complainant v. Sally Jewell, Secretary, Department of the Interior (National Park Service), Agency.


Complainant

v.

Sally Jewell,

Secretary,

Department of the Interior

(National Park Service),

Agency.

Appeal No. 0120120969

Agency No. NPS-09-0532

DECISION

Complainant timely filed an appeal from the Agency's 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 accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.

ISSUE PRESENTED

The issue presented is whether Complainant established that the Agency subjected him to a hostile work environment on the bases of race and sex.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Park Guide, GS-5, at the Agency's Fort Wadsworth-Staten Island Unit, Division of Interpretation, Gateway National Recreational Area, located in Staten Island, New York. Report of Investigation (ROI), Ex. 1.

On August 15, 2009, Complainant's first-level supervisor (S1) directed Complainant to empty money from the visitor center donation boxes, a task Complainant had not done before. ROI, Ex. 5. To perform this task, Complainant proceeded to retrieve a hand truck from the storage room. Id. However, S1 saw Complainant with the hand truck and asked him what he was doing. Id. According to Complainant, S1 was dissatisfied with him using a hand truck and asked him to no longer remove the money from the donation boxes. Id. As a result, Complainant returned the hand truck, but continued to the donation boxes to figure out the best way to remove the money. Id. Also, according to Complainant, while he was in the process of removing the money, S1 said to him in a loud and angry voice, "No, no, put the box back where it was; let the money fall to the bottom and take it out." Id. Complainant reports that as he began to explain himself, S1 instructed him to put the donation box back in its original place and began to scream, "I'll just do it myself! You don't want to do it, I'll do it." Id.

Additionally, according to Complainant, sometime between September 3 and 17, 2009, S1 commented to him that he would be terminated, but did not provide an explanation. Id. When Complainant asked for an explanation, S1 reportedly responded, "Just forget what I said." Id.

On November 21, 2009, Complainant filed an EEO complaint alleging that the Agency subjected him to a hostile work environment based on race (African-American) and sex (male) when:

1. S1 treated him in a disrespectful and unprofessional manner; and

2. S1 informed him that he was to be terminated in front of other staff members.

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 EEOC Administrative Judge (AJ). 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 decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.

The Agency found that Complainant failed to establish a prima facie case of a hostile work environment. Specifically, the Agency found that Complainant failed to establish that S1's actions towards him were based on either his race or sex. The Agency noted that there is no evidence that S1 ordered Complainant around or yelled at him on August 15, 2009, because of his protected classes. The Agency also found that S1's actions were not severe and pervasive enough to establish a hostile work environment. The Agency noted that the August 15, 2009, matter was a single incident that was not physically threatening, there was no physical contact, and there was no demeaning comments based on race or gender. The Agency additionally noted that S1 denied making any statement to Complainant threatening termination.1

CONTENTIONS ON APPEAL

Neither party has submitted a statement on appeal.

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, at Chap. 9, � VI.A. (Nov. 9, 1999) (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").

ANALYSIS AND FINDINGS

Hostile Work Environment

Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has stated that: "Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993).

To establish a claim of hostile environment 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 her 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. 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 at 6.

Upon review, assuming Complainant's allegations are true, he failed established that he was subjected to unwelcome verbal or physical conduct, which would rise to the level of a hostile work environment. We find that Complainant has not proven sufficiently severe or pervasive events to show that he was subjected to a hostile work environment. Although Complainant's work environment may not have been ideal, we do not find that it was hostile and abusive based on Complainant's protected bases. We note that not every unpleasant or undesirable action which occurs in the workplace constitutes an EEO violation. See Shealy v. EEOC, EEOC Appeal No. 0120070356 (Apr. 18, 2011) (citing Epps v. Pep't of Transp., EEOC

Appeal No. 0120093688 (Dec. 19, 2009). Even assuming that the conduct alleged was sufficiently severe or pervasive to create a hostile work environment, we find that Complainant failed to show that any of the alleged incidents were motivated by discriminatory animus based on his race or sex. We note that other employees testified that, although S1 loses her temper from time to time, she did not treat Complainant differently from others. ROI, Exs. 10 and 11.

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 (M0610)

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 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (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

July 18, 2014

Date

1 Although the Agency also analyzed Complainant's claims under a disparate treatment theory, we find the claims are more properly addressed as a hostile work environment.

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0120120969

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120120969