Rene M.,1 Complainant,v.Eugene Scalia, Secretary, Department of Labor (Bureau of Labor Statistics), Agency.

Equal Employment Opportunity Commission

Aug 4, 2020

2019002876 (E.E.O.C. Aug. 4, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rene M.,1 Complainant, v. Eugene Scalia, Secretary, Department of Labor (Bureau of Labor Statistics), Agency. Appeal No. 2019002876 Hearing No. 570-2017-00847X Agency No. CRC1611131 DECISION On February 11, 2019, 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 January 11, 2019, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an IT Specialist, GS- 12, at the Agency’s Division of Technology and Network Management facility in Washington, District of Columbia. On September 22, 2016, Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination and a hostile work environment/harassment on the bases of race (in his formal complaint, Complainant indicated his race was “Middle Eastern”), national origin (Tunisian), religion (Jewish), and reprisal for prior protected EEO activity when: 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. 2019002876 2 1. Upon being hired, on or about September 8, 2015, Complainant was given a temporary badge, even though other employees received permanent badges when they began employment with the Agency; 2. From September 2015, through termination on August 5, 2016, Complainant did not receive any training or career advancement opportunities, even though “non-Tunisian and non-Middle Eastern” employees did; 3. In October 2015, a co-worker, a co-worker, (CW1) told Complainant that there had been discrimination against African-Americans, but that times will change and “non- African-Americans will learn the consequences of their actions;” 4. In November 2015, when Complainant announced his intention to give a coffee mug to a new colleague whom he referred to as “that new girl,” CW1 responded by yelling, “You better not call her ‘that girl’ because she has black in her;” 5. In December 2015, at an IT branch-wide meeting, CW1 prevented Complainant from sitting at a table with other employees and stated that, “we are all blacks at this table;” 6. In December 2015, CW1 told co-workers that Complainant was a “wash-out that just came from the street;” 7. In December 2015, two African-American union stewards approached Complainant outside of a bathroom and threatened him by saying, “Whatever you see, hear, or witness that involves [CW1], you need to shut your mouth, close your eyes, and ears, and not report it, or else you are on probation and we will have you fired;” 8. In December 2015, when Complainant brought a menorah to work to celebrate Hanukah, CW1 moved it to an out of the way window, where it was covered by her plants and could not be seen; 9. In December 2015, Complainant learned from one of his co-workers (CW2) that CW1 called him a liar; 10. In January 2016, Complainant was required to give his personal cell phone number to CW1 when she was made Acting Branch Chief, even though no other employees were required to pride her with their personal cell phone numbers; 11. In January 2016, CW1 implied that Complainant stole her rolodex; 12. In February 2016, CW1 responded to the news that Complainant’s wife received her green card by loudly stating, “Great. Not only do we have to deal with terrorists who are already here, now we have to import them;” 13. In February 2016 and several times since, CW1 has called Complainant’s wife “a mail- order whore” in front of Complainant and his co-workers;” 14. In February 2016, CW1 insulted Complainant and his effort to obtain a master’s degree in intelligence and cybersecurity by telling Complainant, in front of co-workers, that, “I do not know what some people think they are going to get by getting an education and spending all this money on a piece of paper, when someone’s experience far outweigh [sic] the efforts and job advancements some people think they will attain with that piece of paper;” 15. In March 2016, CW1 threatened to have Complainant fired and stated that she can “get someone out of here faster than they can spin their wheels;” 16. CW1 pointed her finger at Complainant and shouted, “You think you know everything! Well, you don’t!”; 2019002876 3 17. In April 2016, CW1 interrupted Complainant’s conversation with a co-worker and called him “a simpleton” and laughed at him; 18. In April 2016, CW1 accused Complainant of cutting her coat with a knife; 19. In April 2016, CW1 responded to Complainant’s reminder that the office water was only for those who paid dues for the water club by pushing him, stating that someone had stolen all the water under her desk and had been drinking the water that was reserved for members of the water club; 20. On or about June 17, 2016, thirty (30) minutes after he filed an informal complaint of discrimination, management officials suspended Complainant’s access to the network, had his laptop taken away, and told him to report to work each day, sit in his office, and do no work; 21. On June 17, 2016, management officials began to investigate Complainant based on a false allegation that he threatened to sabotage the Agency’s network; 22. On July 1, 2016, a management official told Complainant that things “did not look good” for him, that he would likely be fired before the end of his probationary period, and he should begin looking for another job; 23. In July 2016, Complainant was informed that his entire IT team would be moved to a different floor, but that he would remain in his current location, in a room, by himself; 24. On July 29, 2016, Complainant was informed by a co-worker and a management official that another management official accused him of impermissibly entering her office suite; 25. On August 1, 2016, Complainant received a threatening note at his home that stated that if he did not drop his complaint, he would lose his family; and 26. On August 5, 2016, a management official terminated Complainant’s employment during his probationary period and provided him with a memorandum that contained false reasons for his termination. The Agency accepted all 26 claims as relating to Complainant’s hostile work environment claim. However, it dismissed claims (1) through (16) as independent claims, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely contact with an EEO Counselor. It also dismissed claims (17), (18), (19), (22), (24), and (25) pursuant to 29 C.F.R. § 1614.107(a), for failure to state a claim, but only as relates to the bases of race, national origin and religion; it accepted each of these claims on the basis of reprisal. The Agency accepted claims (20), (21), (23), and (26) as disparate treatment claims on the bases of race, national origin, religion, and reprisal. It accepted claims (17) through (26) as disparate treatment claims on the basis of reprisal. The Agency conducted an investigation which produced the following pertinent facts. With respect to his alleged basis of reprisal, Complainant attested that he first reported discrimination on May 23, 2016, and he filed an EEO complaint on June 17, 2016.2 2 CW1 attested that she initially filed a complaint against Complainant in May 2016 and Complainant named her in his complaint filed in June or July 2016. 2019002876 4 With respect to claim (1), Complainant attested that, when he was hired on September 8, 2015, he received a temporary, instead of a permanent, badge and he did not receive a permanent badge until June 12, 2016, which was after he filed an EEO complaint. A Supervisory Personnel Security Specialist explained that, in order for an employee to receive a permanent badge, he must have a minimum of a fingerprint check with no record and a background investigation scheduled with the Office of Personnel Management (OPM) and whenever a fingerprint check revealed a record, her office would await completion of the background investigation before making a credentialing and suitability determination. OPM’s backlog for investigations was close to one year. Complainant’s fingerprint check revealed a record and, therefore, his investigation was caught in OPM’s backlog. With respect to claim (2), Complainant attested that he did not receive training or career advancement opportunities while employed at the Agency. Complainant’s Branch Chief explained that Complainant was approved to attend a training course, Cyber Security Risk Assessment and Management for the U.S. Government, from September 6 through 9, 2016, but he was placed on administrative leave prior to the course date and subsequently was terminated. The allegations contained in claims (3), (4), (5), (6), (7), (9), (11), (12), (13), (14), (15), (16), (17), (18), (19) relate to interactions between Complainant and CW1, during which Complainant alleged there CW1 made inappropriate, insulting, or otherwise unpleasant statements made about him, some of which referenced race or national origin. With respect to claims (3), (4), (5), (6), (7), (12), (13), (15), (16), (17), CW1 denied the allegations and the record does not contain any witness statements to corroborate Complainant’s allegations. With respect to claim (9), another co-worker (CW2) attested that he witnessed CW1 call Complainant a liar multiple times and sighing and making weird gestures whenever Complainant would leave the office area. With respect to claim (11), CW1 acknowledged asking co-workers if they had seen her rolodex, but she denied implying Complainant stole it as he alleged. With respect to claim (14), a co-worker (CW3) attested that Complainant and CW1 expressed differing opinions about the value of a master’s degree. With respect to claim (18), a co-worker (CW4) attested that CW1 stated that someone cut her coat and looked at Complainant while she said it. With respect to claim (19) during which Complainant and CW1 were allegedly arguing about the payment of water club dues, CW1 denied pushing Complainant and attested that she was not a member of the water club and did not know if Complainant paid dues. With respect to claim (8), Complainant attested that he brought a menorah to work with permission from his Branch Chief and someone moved it. CW1 attested that there was a division holiday party and the employees decorated with poinsettias, including placing them in windows. However, she did not recall moving a menorah. The Branch Chief denied knowledge of the alleged event and attested that Complainant did not ask her about bringing a menorah to work. With respect to claim (10), Complainant attested that, when CW1 was Acting Branch Chief in January 2016, she demanded his personal cell number. CW1 denied demanding Complainant’s personal cell phone number but noted that most staff cell phone numbers are available to the branch and the division. 2019002876 5 With respect to claims (20) and (21), Complainant attested that, after he filed a discrimination complainant, management suspended his network access, took away his laptop, and told him to report each day, sit in his office, and do no work. Complainant also alleged he was falsely accused of attempting to sabotage the Agency’s network. The Supervisor IT Specialist attested that he and the Deputy Division Chief secured Complainant’s laptop and had his network access suspended on instructions from Employee Relations. A Supervisory Human Resources Specialist/Employee Relations Officer attested that, on June 16, 2016, she received a complaint from an employee that Complainant threatened him, the employee’s mother, and the Consumer Protection Index (CPI). The next day, a meeting was held, and the decision was made to suspend Complainant’s and the complaining employee’s network access to protect the CPI and Complainant’s laptop was secured to preserve any evidence. Federal Protective Services and IT conducted investigations and, ultimately, the allegations were found not credible. With respect to claim (22), Complainant attested that his Branch Chief told him during his performance review that he should be looking for another job. He attested that she told him that he was a probationary employee and CW1 was a status employee and nothing would happen to her, despite everything she had done to Complainant, and it was more convenient to get rid of a probationary employee. The Branch Chief attested that, in or around February 2016, she placed Complainant on notice for conduct for behaving inappropriately in the workplace. During counseling, she reminded him that he was on probation and could be released during his probationary period. The Branch Chief also explained that, on or around June 2016, Complainant’s network access was removed, and his networked laptop was confiscated, and he was reminded about being released while on probation. She attested that, on or about July 1, 2016, Complainant went to her office and asked about USAJobs and career progression. She reiterated the investigations were underway and she did not know how long it would take to resolve them and reminded him about release during probation. With respect to claim (23), Complainant attested that his Branch Chief told him that his IT team, including CW1, were being relocated to another floor, but he would have to stay where he was in a room by himself. His Branch Chief attested that, due to the EEO complaint filed against him, he was required to relocate immediately, as the EEO Representative told her there was a requirement to keep him separated from CW1 while the investigation was pending. In or around August 2016, the remainder of the branch was relocated to a new space, but Complainant was not permitted to move because the EEO investigation was ongoing. With respect to claim (24), Complainant attested that, on or around July 29, 2016, CW1 falsely reported that he impermissibly entered her office suite. Witnesses attested that Complainant was standing in front of CW1’s suite but did not see him enter. With respect to claim (25), Complainant attested that an unknown person sent a note to his home, threatening that he would lose his family if he did not drop his EEO complaint. 2019002876 6 The Branch Chief attested that she received a copy of the note after Complainant had been given notice that he was to be released. With respect to claim (26), Complainant attested that he was terminated for not saving his work on the shared network drive, inappropriate communication, and a disciplinary action on February 18 for conduct that never happened, and he disagreed with these reasons. The Branch Chief attested that her decision to terminate Complainant was based on conduct-related concerns she noticed during the probation period, as well as statements in an affidavit provided by CW3 as part of the investigation involving Complainant’s network access. The Notice to Discharge during Probationary Period, dated August 5, 2016, indicates Complainant was terminated, effective August 26, 2016, because he failed to demonstrate satisfactory conduct during his probationary period. The Notice cites Complainant’s inappropriate behavior and ineffective team communications, as well as Complainant’s failure to follow instructions regarding saving work on the shared network drives. 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 Equal Employment Opportunity Commission 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 instant appeal followed. On appeal, Complainant argues that the he established a prima facie case of retaliation and the Agency’s reasons for its actions taken against Complainant were a pretext for discrimination. Complainant also argues that the Agency subjected him to harassment and discrimination on the bases alleged. In response, the Agency addresses Complainant’s allegations and concludes that Complainant has failed to substantiate any alleged error in the Agency’s final decision. The Agency submits that its final decision should be affirmed. 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, at Chapter 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”). 2019002876 7 Harassment Claim Complainant has alleged the Agency subjected him to harassment, noting numerous alleged instances. In considering whether the alleged actions, whether individually or collectively, constitute harassment, the Commission notes that, in Harris v. Forklift Systems, the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant's employment See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. To establish a claim of harassment a 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 McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Furthermore, in assessing whether the complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. § 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request No. 05970077 (March 13, 1997). However, 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 Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001). Complainant’s harassment allegations include instances that can generally be described as relating to personality conflicts and workplace disputes with a co-worker or disagreements with managerial decisions. Without evidence of an unlawful motive, we have found that similar disputes do not amount to unlawful harassment. See Complainant v. Dep’t of Def., EEOC Appeal No. 0120122676 (Dec. 18, 2014) (The record established that the issues between the complainant and the supervisor were because of personality conflicts and fundamental disagreements over how work should be done and how employees should be supervised, and there is no indication that the supervisor was motivated by discriminatory animus towards the complainant's race, sex. or age); Lassiter v. Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial slights and petty annoyances between a supervisor and a complainant do not rise to the level of harassment); and Phillips v. Dep’t of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996) (the allegation that a supervisor had “verbally attacked” the complainant on one occasion, attempted to charge him with AWOL, and disagreed with the time the complainant entered into a 2019002876 8 sign in log, were found to be insufficient to state a harassment claim). Although Complainant asserts that the Agency acted discriminately, there is insufficient evidence to support the allegations that Complainant’s race, national origin, religion, or prior EEO activity played a role in the incidents at issue, or to the extent it might be implied that several of the remarks alleged to have been made by CW1 referenced Complainant’s national origin, that these were more than isolated incidents. Thus, Complainant’s allegations, even if true, are insufficient to support a claim of discriminatory harassment. Disparate Treatment Claim Complainant’s allegations in claim (26) regarding his termination give rise to a claim of disparate treatment. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Tex. Dep’t of Cmty. Affairs v. Burdine. 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). Even if we assume that Complainant established a prima facie case of discrimination, his claim ultimately fails, as we find that the Agency articulated legitimate, non-discriminatory reasons for its actions. The Agency explained and the record shows that Complainant was terminated because he failed to demonstrate satisfactory conduct during his probationary period, including inappropriate behavior and ineffective team communications, as well as his failure to follow instructions. Although Complainant has alleged discrimination, he has not established by a preponderance of the evidence, that the legitimate, non-discriminatory reasons articulated by the Agency were a pretext for unlawful discrimination or motivated by some unlawful discriminatory animus with respect to this claim. 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. 2019002876 9 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). 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. 2019002876 10 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 August 4, 2020 Date