Harvey G.,1 Complainant,v.Kevin McAleenan, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity Commission

Apr 30, 2019

0120172977 (E.E.O.C. Apr. 30, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Harvey G.,1
Complainant,

v.

Kevin McAleenan,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.

Appeal No. 0120172977

Hearing No. 480-2013-00606X

Agency No. HS-ICE-22782-2012

DECISION

Complainant timely 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 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.

ISSUE PRESENTED

The issue presented is whether substantial evidence in the record supports the EEOC
Administrative Judge’s (AJ’s) finding that Complainant did not establish that he was subjected to
a hostile work environment, as alleged.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Deportation Officer
with the Agency’s Enforcement and Removal Operations in Los Angeles, California.

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.
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Report of Investigation (ROI), at 7. On June 20, 2012, Complainant’s unit was notified about an
immigrant with a criminal record who had re-entered the country illegally. Complainant notified
management via email that the immigrant was now in custody and had been placed by him in the
appropriate detention facility for federal prosecution. Id. at 31. The next day, June 21, 2012, the
Supervisory Detention and Deportation Officer (SDDO) replied to Complainant’s email writing,
“But will someone please give [Complainant] some cheese, bright red lip stick, and a bus driver
hat?” Id. at 52. When the SDDO replied to Complainant’s email, he sent it using the “reply all”
function, and therefore the email was sent to many coworkers and management officials. Id.
Complainant became upset over the email and believed it was meant to label him as a homosexual
and as a “snitch” or a “rat.”

Complainant then approached the Deputy Field Office Director (DFOD) to complain about the
email he received from the SDDO. The DFOD then apologized to Complainant on behalf of the
Los Angeles Field Office (LAFO) and said the email was not a reflection of LAFO management.
Id. at 35. The Assistant Field Director then reportedly issued the SDDO with a verbal counseling
over the email and instructed the SDDO to issue an apology to Complainant. Id. at 35-36. The
SDDO was then instructed to complete some online courses, including Business Etiquette for
Supervisors and Communication Skills for Successful Management. Id. The SDDO apparently
completed the courses on June 27, 2012. Id. Complainant averred that the SDDO did apologize
through a phone call but, according to Complainant, the apology did not sound sincere. Id. at 38.

On August 31, 2012, Complainant filed an EEO complaint alleging that the Agency subjected him
to a hostile work environment on the basis of sex2 (male, perceived sexual orientation) when on
June 21, 2012, an email message was sent to the management staff in the Los Angeles Filed Office
that said, “But will someone please give [Complainant] some cheese, bright red lip stick, and a
bus driver hat?”

Following 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 AJ. Complainant timely
requested a hearing. The AJ held a hearing on July 13, 2016 and issued a decision on July 12,
2017. The Agency subsequently issued a final order fully implementing the AJ’s finding that
Complainant failed to prove that the Agency subjected him to discrimination as alleged.

The AJ found that Complainant did not establish that the email he received from the SDDO was
severe or pervasive enough to rise to the level of a hostile work environment. The AJ specifically
observed that none of Complainant’s coworkers found the email to be “extremely sexist.” The AJ
also observed that the SDDO testified that his reference to the red lipstick was meant to describe
a “bitchy attitude,” and his reference to the cheese described Complainant as a complainer or
whiner. The AJ also noted that the SDDO testified that the bus driver’s hat reference implied that
Complainant was “throwing people under the bus” and getting them in trouble.

2 Complainant also alleged age as a basis in his complaint. However, Complainant did not pursue
this basis during the course of the EEO process.
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The AJ therefore found that while the email was a negative sex-based comment, it was not based
on Complainant’s sexual orientation. The AJ also found no credible evidence of specific incidents
where Complainant was treated adversely by anyone at the Agency because of the email. The AJ
found no other circumstances of sex-based hostility toward Complainant and noted that the SDDO
did not engage in any other such conversations or emails with Complainant. The AJ therefore
found that this single email to Complainant did not rise to the level of a hostile work environment.

CONTENTIONS ON APPEAL

On appeal, Complainant, through his attorney, asserts that the email he received from the SDDO
was sent to 10 identified law enforcement employees and to a general mailbox accessible to a
number of other persons within the law enforcement community at the Los Angeles Field Office.
Complainant maintains that there were at least three individuals who had received the email and
interpreted it as suggesting that he was either a homosexual or transgender. He asserts that the
Agency did not begin to investigate the comments in the email until September 9, 2013, well over
one year after the email was sent. Complainant states that the Agency finally issued the SDDO a
Letter of Counseling on April 1, 2014, which was almost two years after the SDDO’s June 21,
2012, email. Complainant argues that the SDDO never sent a letter or an email of apology to the
individuals who had received his email. Complainant maintains the Commission has previously
held that a single, usually severe incident may be sufficient to rise to the level of a hostile work
environment. Complainant therefore contends that the AJ erred as a matter of law by concluding
that the email was not severe enough to rise to the level of a hostile work environment.

STANDARD OF REVIEW

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A
finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-
Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ’s conclusions of law are subject to a de
novo standard of review, whether or not a hearing was held.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a
witness will be accepted unless documents or other objective evidence so contradicts the testimony
or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap.
9, at § VI.B. (Aug. 5, 2015).

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ANALYSIS AND FINDINGS

Hostile Work Environment

It is well-settled that harassment based on an individual’s statutorily protected bases is actionable.
See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of
harassment, Complainant must show that: (1) he belongs to the statutorily protected classes or
engaged in prior EEO activity; (2) he was subjected to unwelcome conduct related to his
membership in those classes or his prior EEO activity; (3) the harassment complained of was based
on those classes or that activity; (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 Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982).

As noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998):
“simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not
amount to discriminatory changes in the “terms and conditions of employment.” The Court noted
that such conduct “must be both objectively and subjectively offensive, [such] that a reasonable
person would find [the work environment to be] hostile or abusive, and . . . that the victim in fact
did perceive to be so.” Id. See also Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752 (1998);
Clark Cnty. School Dist. v. Breeden, 532 U.S. 268 (2001).

Upon review, we conclude that there is substantial evidence in the record to support the AJ's
decision that Complainant did not establish that the email at issue was severe or pervasive enough
to establish a hostile work environment. In so finding, we note, as did the AJ, that Complainant
received only the one email from the SDDO, and there is no dispute that the SDDO did not engage
in any other similar conduct towards Complainant. There is also no dispute that Complainant was
not treated adversely in any manner in relation to the email. Therefore, we find that the record
supports the AJ’s determination that the email was an isolated incident, which did not rise to the
level necessary to establish a hostile work environment. We note that the antidiscrimination
statutes are not civility codes. Rather, they forbid “only behavior so objectively offensive as to
alter the conditions of the victim’s employment.” Oncale v. Sundowner Offshore Serv., Inc., 523
U.S. 75, 81 (1998).

Moreover, we find that the record supports the AJ’s determination that Complainant did not
establish that the email was meant to refer to him as a homosexual. In so finding, we note that the
DFOD testified that he believed the email most likely referred to Complainant as a “rat” or a
“tattletale.” Hearing Transcript, at 129. In addition, the AJ credited the SDDO’s testimony that his
email was meant to describe a “bitchy attitude,” and label Complainant as a complainer who was
“throwing employees under the bus.” Id. at 103-104. Therefore, the AJ concluded that the email
was not based on sexual orientation. We note that the credibility determinations of an AJ are
entitled to deference due to the AJ’s first-hand knowledge, through personal observation, of the
demeanor and conduct of the witnesses at the hearing.
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See Shu v. Dep't of the Treasury, EEOC Appeal No. 0120102346 (Jan. 23, 2012), req. for recon.
den’d, EEOC Request No. 0520120325 (June 21, 2012) (citing Esquer v. U.S. Postal Serv., EEOC
Request No. 05960096 (Sep. 6, 1996)). As such, we find that substantial evidence in the record
supports the AJ’s decision that Complainant did not establish that he was subjected to a hostile
work environment, as alleged.

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 order implementing the AJ’s
decision finding that Complainant was not 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.
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).
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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

April 30, 2019
Date