0120120652
08-05-2013
Thomas D. Gray, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Bureau of Alcohol, Tobacco, Firearms & Explosives), Agency.
Thomas D. Gray,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Bureau of Alcohol, Tobacco, Firearms & Explosives),
Agency.
Appeal No. 0120120652
Agency No. ATF-2010-00703
DECISION
On November 14, 2011, Complainant filed an appeal from the Agency's October 19, 2011, 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).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Industry Operations Investigator at the Agency's Field Division facility in Houston, Texas.
On November 12, 2010, Complainant filed an EEO complaint alleging that the Agency subjected him to harassment on the bases of race (Caucasian) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964. In support of his claim of harassment, Complainant indicated that the following events occurred:
1. Complainant's Supervisor (African-American) attempted to remove Complainant from his assignment and replace him with unqualified African American employees.
2. At a meeting on August 6, 2010, Complainant was accused of stealing work from a co-worker ("Co-worker 1") (African American). Complainant asserted that his character was attacked and his job performance was criticized.
3. The Supervisor has made threats of retaliation against Complainant and others.
The Agency accepted Complainant's claim of racial harassment for investigation based on the events in allegations (1) and (2), but dismissed allegation (3) for failure to state a claim. 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), 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 racial harassment as alleged. Noting no adverse personnel action was actually taken against Complainant, the Agency reasoned that the events alleged by Complainant, even if proven true, were not severe or pervasive enough to establish Complainant was subjected to a discriminatory hostile work environment. The Agency further determined that the Supervisor was reprimanding Complainant's behavior and performance deficiencies without evidence of treatment based on Complainant's race. As such, the Agency concluded that Complainant failed to show that he had been subjected to harassment based on his race.
This appeal followed without a supporting argument. In a brief letter accompanying the notice of appeal, Complainant's Attorney asserted that the Agency's decision was poorly drafted, noting the typographical error in the Analysis section where Complainant's race was misidentified.
ANALYSIS AND FINDINGS
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. (November 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").
The Commission notes that, although the Agency dismissed Complainant's claim of retaliatory harassment prior to the investigation, Complainant did not challenge this dismissal on appeal. In light of this fact, the Commission declines to address whether this dismissal was appropriate. As such, the Commission will address the Agency's decision finding that Complainant was not subjected to race-based harassment.
It is well-settled that harassment based on an individual's race is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of discriminatory harassment, the complainant must show that: (1) he belongs to the statutorily protected class; (2) he was subjected to unwelcome conduct related to his membership in that class; (3) the harassment complained of was based on race; (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). 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 Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994).
Upon review of the record, we find that Complainant is Caucasian.1 He alleged that the Supervisor (African-American) subjected him to unwelcomed conduct because of Complainant's race. Specifically, Complainant pointed to two events. In the first event, Complainant asserted that the Supervisor attempted to remove him from his assignment and replace him with an African American employee. The record showed that Complainant had been detailed into a Gunrunner Industry Operation Investigator (Gunrunner) position in May 2008. The detail was apparently for an indefinite period of time. Complainant claimed that from December 2009 through August 2010, the Supervisor twice tried to have Complainant removed from the Gunrunner detail and returned to his position of record. The Supervisor conceded that he had, in fact, asked to remove Complainant from his assignment as a Gunrunner because Complainant had been on the detail for two years and it was time to rotate someone else into the position. He apparently sought to rotate an African American employee into the position, but his request was denied by upper-level management.
In addition, the Supervisor apparently expressed concerns about Complainant's performance in the detail. The Supervisor is reported to have expressed to another management official that Complainant displayed an attitude that he was better than the other Investigators despite not completely understand how proper inspections should be done. The Supervisor said that he sought to have Complainant returned to his regular assignment to also address these concerns. The record does not establish, however, that Complainant was actually removed from his Gunrunner assignment. The record does establish that the Agency created a second Gunrunner position and, despite Complainant's allegation that an African American employee was preselected, the Supervisor selected a co-worker who was not African American for the assignment.
As to the second event, on August 6, 2010, the Supervisor convened a meeting to discuss the rumors and accusations that Complainant was stealing the work of another agent. The meeting was tense. The Supervisor acknowledged that he told Complainant that Complainant's fundamental skills as an Industry Operations Investigator were not strong. He told Complainant that he needed to act with more humility and not "toot his own horn." The Supervisor told Complainant that he heard rumors that Complainant was trying to "poach" his section's work. One agent (African American female) left the meeting and stopped at her desk and loudly announced to all within earshot, "not to ever believe anything [Complainant] said, that he would lie."
Another agent in the meeting (African American) at the meeting stated that Complainant would not permit Co-worker 1 or herself to speak. Complainant asserted that when he was explaining his involvement, he was "shouted down" by the Supervisor and Co-worker 1. Complainant averred that his Supervisor had talked down to him and felt that he was personally attacked. Complainant asserted that he was insulted by the implication that his performance was lacking as he had received "outstanding" performance appraisals for the last two years.
A Caucasian agent, who was also at the meeting, stated that afterwards Complainant came to her and stated that he believed what had happened at the meeting was discriminatory. She said that she told him that she did not see it as discrimination and told him that he needed to improve his communication skills, which she perceived he did not seem to like to hear.
The record shows that there was ongoing friction between Complainant and his Supervisor. Complainant believed that the Supervisor was biased in favor of the African-American employees and failed to give Complainant his due credit. Complainant's Supervisor acknowledged that he said that he wanted to take Complainant down a notch and referred to Complainant as a "diva."
As other examples of his claim that the Supervisor treated him unfavorably because of his race, Complainant alleged that he was not invited to a social event at the Supervisor's house, he did not inform Complainant of positive feedback received, and denied a request for Complainant to make a presentation in New Orleans. The Supervisor denied having a social event at his home. He further stated that he did not deny Complainant's request to make a presentation, but rather suggested that someone else join Complainant in making the presentation in order to strengthen it. Upper level management agreed with this suggestion.
A Caucasian agent supported Complainant's contention that the Supervisor treated Caucasian employees less favorably. He stated that he received a letter of reprimand from the Supervisor that was later rescinded, and proposed a lower performance rating than he believed he deserved. This witness also stated that the Supervisor had a social event at his home and only invited African American employees.
Based on the evidence gathered during the investigation, we determine that Complainant has not proven, by a preponderance of the evidence, that he was subjected to severe or pervasive harassment based on his race. While the evidence shows that Complainant was reprimanded for alleged performance deficiencies and for a conflict with another employee, and that the Supervisor sought unsuccessfully to end his two-year detail as a Gunrunner, there is no evidence that these actions were because of his race rather than personality conflicts and management style issues.
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 finding no discrimination.
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
August 5, 2013
__________________
Date
1 We note that at the beginning of its final decision, the Agency identified Complainant's race as "Caucasian." However, in the Analysis section of the final decision, the Agency misstated Complainant's race as "Black." It appears that the error was typographical in nature.
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0120120652
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120120652