0120093441
11-09-2010
Robert E. Cory, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.
Robert E. Cory,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120093441
Agency No. P-2007-0415
DECISION
On August 21, 2009, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's July 20, 2010, 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 deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
Whether Complainant was discriminated against based on his sex (male) from January 2006 through June 2007, when he was subjected to sexual harassment from co-worker 1 by her making offensive remarks, threatening to file false allegations of misconduct against him, making harassing phone calls and text messages to him and his wife, lying to supervisors alleging he was not doing his job, and attempting to sabotage his job and marriage. Complainant contends that management did not take prompt and effective action to stop the harassment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Correctional Officer, GS-7, at the Agency's Bureau of Prisons, Federal Medical Center, in Lexington, Kentucky.1 Complainant filed an EEO complaint alleging the above issue. 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). After Complainant did not request a hearing, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
Complainant and co-worker 1 lived together in a consensual relationship, and broke up around December 2005. He contended that after this, she started harassing him. The Agency's decision concluded that Complainant failed to prove that it subjected him to discrimination as alleged. Specifically Complainant contended that on January 3, 2006, co-worker 1 threatened to file false charges against him with Special Investigative Services. The Agency found that Complainant did not prove this occurred, noting that no charges were filed.
Complainant contended that shortly after he got married, co-worker 1 in September 2006 started calling his wife saying he was having an extramarital affair, and in March 2007 anonymously texted him that his wife was seen out with another man. The Agency found that management looked into the matter, and was unable to verify the identity of the person who made the calls and texts. Part of Complainant's job is to count inmates and visitors and submit a written count to the Control room. He contended that co-worker 1 deliberately mishandled and changed procedures on the counts in an attempt to shift blame on him and make things more difficult. The Agency found that Complainant did not show that co-worker 1 intentionally mishandled the counts.
Complainant contended that starting in March 2007, at the start of the new quarter, he was assigned as the number one visitation officer, and co-worker 1 was assigned as the day shift control relief officer. Complainant contended that thereafter, when he called the Control room and co-worker 1 picked up she would drop the receiver and wait for someone else to take the call, and when he waited in line for keys there, she would walk away, even if others were waiting for keys, leaving him and others waiting until the other Control officer was free. The Agency found while these events occurred, they were not sufficiently severe or pervasive to rise to the level of actionable harassment.
Complainant contended that in June 2007, co-worker 1 complained to management after he another Correctional Officer in separate incidents moved the direction of observation cameras as a patrol activity. The Agency's final decision found that Complainant did not show Co-worker 1 did this to disparage his performance. Citing federal district and circuit case law, the Agency also found that co-worker 1's unfavorable treatment toward Complainant was not because of his sex (male), but because of the termination of their consensual relationship.
On appeal, Complainant makes no substantive argument.2
ANALYSIS AND FINDINGS
To establish a claim of harassment a 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 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 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). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).
Complainant contended that starting in January 2006, on numerous occasions co-worker 1 cursed at him, mostly when no witnesses were present. He said that this behavior stopped after he complained to his on duty supervisor Lieutenant A.T. in September 2006, but then shifted to passive-aggressive harassment. Complainant did not describe the nature, context, or frequency of the cursing.
Complainant contended that on January 3, 2006, co-worker 1 threatened to file false charges against him with Special Investigative Services. No charges were filed.
Telephone calls and text messages
Complainant contended that in September 2006 and May 2007, co-worker 1 repeatedly called his newlywed wife, and said on at least six calls that he was having an affair. He indicated one call was made in September 2006 with a disguised voice from a blocked telephone number, and the May 2007 calls were from a 617 area code. Complainant contended that co-worker 1 did not disguise her voice in one of the May 2007 calls, and his wife recognized it as worker 1. Complainant wrote that on March 12, 2007, in an interactive texting exchange with him, co-worker 1 anonymously texted that she saw his wife shopping with a man. Complainant transcribed the exchange, and one text he received said I work with you.
Complainant's Captain stated that Complainant would complain about co-worker 1 doing things to him such as talking to him in an unprofessional manner and refusing to take his count slips, but after talking to lieutenants and staff about these things, there was no validity to the complaints. He stated that when he brought things to the attention of co-worker 1, she would say it was not her and he immediately then said they had no proof about some of the things they talked about, like phone calls. The Warden stated they researched the phone numbers Complainant gave, but none tracked back to co-worker 1 or the institution. He stated he called the one with the 617 area code and learned it was from a legitimate business in Boston, Massachusetts, and had the communications specialist shop look into the another number, and it was not a working number nor registered to any phone number in the institution.
We find that this matter does not support Complainant's claim of employment discrimination harassment because he did not show that co-worker 1 made the phone calls or texts. Moreover, this matter appears to be something which occurred off Agency premises, making the connection to employment tangential.
Counts
Complainant contended that on September 3, 2006, he submitted a visiting room count on two separate sheets to the Control room, and co-worker 1 rudely yelled while a visitor was present that it needed a lieutenant's signature. Complainant stated that when he later called the Control room, Lieutenant V.C., who did not realize there were two count sheets, told him it was a bad count, and after Lieutenant V.C. realized co-worker 1 did not enter both sheets, Complainant overheard co-worker 1 in the background repeatedly trying to shift blame onto him. Complainant contended that on September 4, 2006, he received a telephone call from a Control room officer saying he needed to submit a second count slip because of the way co-worker 1 inputted it. Complainant contended that co-worker 1 was coming up with new requirements for him to make things difficult. Complainant wrote that on May 18, 2007, a Control room officer called him saying he was told by co-worker 1 that he did not submit his count, even though he did so.
The Captain stated that Complainant would complain to him that co-worker 1 talked to him in an unprofessional manner after he submitted his count slips or refused to take his counts, but after interviewing staff and talking to the Lieutenants, he found no validity to the complaints. He said he talked to Control room staff and said they did not hear co-worker 1 being unprofessional toward Complainant. Lieutenant V.C. stated there was an incident where after talking to Complainant on the telephone he made an accusation that he heard co-worker 1 fussing or cursing him or something like that in the background, but she was there and co-worker 1 was not talking about Complainant. She stated that she wrote a memo about it.
Complainant failed to show that co-worker 1 treated him adversely regarding the counts, and hence this matter does not support his claim of harassment.
Phone calls, keys, and observation cameras
The Agency found that as a Control room officer, co-worker 1 would not take Complainant's phone calls or give him keys. This is supported by the record. This caused delays for Complainant. Complainant stated that when someone calls the Control room in a prison and the phone is not answered, this could be extremely dangerous.
Complainant wrote that on June 17, 2007, in preparation for getting the visiting room ready, he moved the direction of parking lot observation camera to the visitor lot for about 10 seconds so he could assess the number of visitors by looking at the number of cars. He stated co-worker 1 called the Captain, who went to the visiting room and told him not to use the camera. Complainant stated that after explaining why he used the camera, the Captain, when pressed, did not give a reason for not moving them, and conceded the matter was petty. Complainant contended that on June 22, 2007, he was with co-worker 2 in the visitors' room before visitors arrived who moved a reaction yard observation camera pointed to the sky down to the yard to observe gathering inmates. Complainant stated that Lieutenant L. then walked in the room and told them not to use the camera without permission of the Control room or Special Investigations personnel. Complainant stated that co-worker 2 then talked to a Special Investigative technician, who said there was no problem utilizing the camera to observe the recreation yard.
While it is not clear that co-worker 1 was involved in the second camera incident, we find by a preponderance of the evidence that she was involved in the first. This interfered with Complainant's ability to do his job, and this, together with not taking his phone calls or waiting on him to hand out his keys, unreasonably interfered with his work environment. The Agency did not contest Complainant's statement that in a prison environment, someone in the Control room not taking his calls was dangerous.
Complainant, however, failed to make out a prima facie case of discrimination because he did not show the harassment was based on his sex. Rather, the record shows it stemmed from anger from a failed relationship. See D. Missouri: Lowry v. Powerscreen USB, Inc., 72 F. Supp. 2nd 1061 (E.D. Mo. 1999) (the plaintiff was harassed at work by a co-worker she dated prior to her employment. After the termination of their relationship, the co-worker allegedly called her names, watched her, followed her to the restroom, and after work threw a can of soda and hammer at her. The Court found that the testimony showed the alleged menacing behavior was based on their personal relationship, not her sex or gender).
The Agency's final decision finding no discrimination is AFFIRMED.
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
November 9, 2010
__________________
Date
1 He applied for and accepted a new Agency job in a warehouse. While it is not clear, the record suggests he started in June 2007.
2 By letter to the Commission's Office of Federal Operations dated June 16, 2010, Complainant's attorney wrote that Complainant was filing a charge of discrimination based on disability because on September 4, 2009, the Agency's Federal Medical Center in Lexington, Kentucky denied his request for reasonable accommodation. In the complaints process, the Office of Federal Operations handles appeals and requests for reconsiderations, not requests for EEO counseling. To the extent Complainant wants to participate in the EEO complaint process, he is advised to initiate EEO counseling with a Federal Bureau of Prisons EEO counselor servicing the Federal Medical Center in Lexington, Kentucky. An aggrieved person must seek EEO counseling within 45 days of the date of the alleged discriminatory matter, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. � 1614.105(a)(1).
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0120093441
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093441