0120093058
01-06-2012
William B. Walker, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
William B. Walker,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120093058
Hearing No. 410-0080-250-L
Agency No. HS-07-TSA-001441
DECISION
On July 14, 2009, Complainant filed an appeal from the Agency’s June
26, 2009, 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. § 621 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 order.
ISSUE PRESENTED
The issue presented is whether substantial evidence in the record supports
the EEOC Administrative Judge’s conclusion that Complainant failed to
demonstrate that he was discriminated against on the bases of sex, age,
and reprisal for prior protected EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant
worked as a Transportation Security Officer (TSO) at the Agency’s
Hartsfield-Jackson Atlanta International Airport in Atlanta, Georgia.
Complainant’s First Level Supervisor (S1) was the Supervisory TSO.
On September 26, 2007, Complainant filed an EEO complaint alleging that
the Agency discriminated against him on the bases of sex (male), age
(50), and reprisal for prior protected EEO activity when:1
1. Between November 2006 and February 2, 2007, he was subject
to a hostile work environment when his co-worker (C1 – male, under
40) called him names such as “little girl,” “sissy,” “old
bastard,” “old mother fucker,” and “old man.”
2. On February 17, 2007, he received a Letter of Reprimand (LOR).
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. The AJ held a hearing on August 25, 2008,
and issued a decision on June 8, 2009.
Regarding the alleged name calling by C1, the AJ found the following
facts: Between November 2006 and February 2007, Complainant worked
with C1 at the International Checkpoint. Complainant testified that,
on November 14, 2007, C1 called him an “old man,” “old geezer,”
and “girly.” Complainant further testified that he went to S1 and
verbally notified her that he was being called names. On December 8,
2006, C1 confronted and berated Complainant in front of passengers.
That same day, Complainant sent an email to S1 stating that C1 called
him an “old man,” “old bastard,” and “old mother fucker.”
On January 3, 2007, C1 refused to relieve Complainant from duty at
the end of each half hour, otherwise referred to as “tapping out.”
Subsequently, on January 5, 2007, Complainant sent S1 a second email
stating that he was being subjected to a hostile work environment,
and that C1 had called him a “little girl.” On February 1, 2007,
there was another exchange of name calling between Complainant and C1,
wherein Complainant said “kids will be kids” and C1 said “old men
will be old men.” At this point, Complainant contacted the Deputy
Assistant Federal Security Director (DAFSD), who had authority to move
employees and was not contacted prior to this point. C1 also contacted
the Assistant Federal Security Director regarding what he believed to
be harassment by Complainant.2
Regarding the Agency’s response to the alleged name calling,
the AJ found the following facts: After Complainant’s December 8,
2006 email, S1 spoke with Complainant and C1 about the situation.
C1 denied the allegations. S1 testified that she instructed a Lead
TSO to keep Complainant and C1 separate when possible; however, the
two were not separated. After Complainant’s January 5, 2007 email,
S1 determined that the situation consisted of petty comments and was
not discrimination. S1 again met with Complainant and C1, and suggested
that each of them refrain from the name calling. In February 2007,
DAFSD instructed S1 to conduct a full inquiry into the allegations of
name calling. From February 2-4, 2007, S1 collected written statements
from other TSOs who worked at the checkpoint with Complainant and C1.
S1 contacted co-workers named by C1, but not Complainant. The co-workers
stated that both Complainant and C1 were engaging in name calling over
the past few months.3 S1 then decided that both Complainant and C1
were at fault and, on February 17, 2007, issued both of them a LOR for
unprofessional conduct. Afterwards, Complainant and C1 were moved to
separate checkpoints.
In her decision, the AJ found that Complainant failed to demonstrate that
he was discriminated against on the bases of sex, age, and reprisal.4
Regarding claim 1, the AJ found that Complainant failed to establish a
claim of hostile work environment harassment. First, the AJ found that
Complainant failed to show that C1’s conduct rose to the level of severe
or pervasive harassment. Specifically, the AJ determined that Complainant
did not view C1’s conduct as subjectively offensive because Complainant
himself was consistently part of the name calling between November 2006
and February 2007. In addition, the AJ determined that the exchanges
between Complainant and C1 amounted to no more than teasing, offhand
comments, and isolated incidents that were not severe or pervasive.
Further, the AJ determined that, even assuming that all the incidents
happened as Complainant alleged, there was insufficient evidence that
C1’s conduct interfered with Complainant’s work performance. The AJ
noted that Complainant received an excellent performance rating from S1
and was given a promotion on February 18, 2007. Second, the AJ found
that Complainant failed to show that the alleged harassment occurred
due to sex, age, or reprisal. Third, the AJ found that the Agency had
taken sufficient remedial action because S1 met with Complainant and C1
and advised them not to engage in the name calling, S1 initially tried
to keep them separated within the same checkpoint, S1 issued both of
them a LOR, and DAFSD eventually reassigned them to different checkpoints.
Regarding claim 2, the AJ found that Complainant failed to establish that
the Agency’s actions were discriminatory. Initially, the AJ found that
Complainant established a prima facie case of discrimination on the basis
of reprisal, but not on the bases of age and sex. Next, the AJ found
that the Agency articulated legitimate, nondiscriminatory reasons for
its actions. Specifically, the AJ noted that Complainant was issued a
LOR for unprofessional conduct because he engaged in “back and forth”
name calling with C1 over several months, which C1 had complained about.
Finally, the AJ found that Complainant did not put forth any evidence
that the Agency’s reasons were a pretext for discrimination.
The Agency subsequently issued a final order adopting the AJ’s finding
that Complainant failed to prove that the Agency discriminated against
him as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant, through his attorney, requested that we reverse
the AJ’s decision. Regarding claim 1, Complainant asserted, among
other things, that he established a claim of harassment on the bases of
sex and age because C1’s conduct was sufficiently severe and pervasive.
First, Complainant argued that the name calling began on November 14,
2006 and occurred three or four times a week until February 2007.
Although his written statements to S1 only referenced a few incidents,
Complainant noted his hearing testimony that he only included the
incidents where a witness was present, as it was his opinion that he
would not be believed otherwise. Second, Complainant argued that he
felt threatened and humiliated by C1’s conduct because C1 yelled
those offensive names to his face while co-workers and passengers were
present. Third, Complainant argued that name calling interfered with
his work performance and interrupted the flow of his checkpoint line.
Complainant cited a December 5, 2006 incident in which he was forced to
halt his line when C1 began cursing and yelling at him in his work area.
Complainant noted his affidavit testimony that he felt “extremely
uneasy and apprehensive” when he began each workday.
Regarding claim 2, Complainant asserted that the Agency’s explanation
that he engaged in misconduct was a pretext for discrimination on the
basis of reprisal. Specifically, Complainant argued that S1 issued him
a LOR based on her investigation into the name calling allegations in
which she omitted relevant information and included statements from
individuals who were biased against him. In addition, Complainant
argued that S1 had a reason to believe that C1’s allegation was false
because C1 had previously told S1 that Complainant had not called him
any names. Further, Complainant argued that S1 was aware that C1 had
made other allegations against him that were found to be untruthful.
Finally, Complainant argued that the only co-worker statement in S1’s
investigation that supported C1’s allegation was made TSO1, who had
previously lodged a complaint against Complainant in October 2007.
In response, the Agency requested that we affirm the AJ’s decision.
Regarding claim 1, the Agency asserted, among other things, that the
few incidents that Complainant cited were not severe or pervasive.
Specifically, the Agency argued that Complainant could provide only
four specific incidents that he claims constituted harassment and that
the record does not support his contention that the name calling by C1
occurred on a daily basis. The Agency noted that Complainant did not have
contemporaneous statements, either from himself or from his co-workers,
to corroborate his contention of daily or frequent name calling by C1.
In addition, the Agency argued that Complainant did not prove that the
alleged harassment interfered with his job performance.
Regarding claim 2, the Agency asserted that Complainant offered no proof
that S1 was motivated by discrimination or reprisal. Specifically, the
Agency argued that Complainant could not prove pretext or discrimination
merely by denying that he engaged in unprofessional conduct. In addition,
the Agency argued that Complainant’s opinion that S1 should not have
believed that he called C1 names was irrelevant and non-probative.
Finally, the Agency argued that S1, in determining that Complainant
called C1 names, also relied on written statements from co-workers and
did not rely solely on the word of C1.
ANALYSIS AND FINDINGS
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. Nat’l Labor Relations Bd., 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 EEOC Management Directive 110 (EEO MD-110),
Ch. 9, at § VI.B. (Nov. 9, 1999).
Claim 1 – Harassment
To establish a claim of harassment a complainant must show that: (1)
they belong to a statutorily protected class; (2) they were subjected
to harassment in the form of unwelcome verbal or physical conduct
involving the protected class; (3) the harassment complained of was
based on their 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. EEOC Enforcement
Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002, at 2
(Mar. 8, 1994). In determining whether an environment is “hostile”
or “abusive,” a trier of fact must consider all the circumstances,
including the following: the frequency of the discriminatory conduct;
its severity; whether it is physically threatening or humiliating, or
a mere offensive utterance; and whether it unreasonably interferes with
an employee’s work performance. Harris, 510 U.S. at 23.
After a careful review of the record, we discern no basis to disturb
the AJ’s conclusion that Complainant failed to establish a claim
of harassment. Here, we find that substantial evidence in the
record supports the AJ’s finding that the alleged harassment was
not sufficiently severe or pervasive to rise to the level of a hostile
work environment. In so finding, we note that EEO regulations are not
a “general civility code” and forbid “only behavior so objectively
offensive as to alter the condition of [Complainant]’s employment.”
Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80-81 (1998).
Thus, federal law does not prohibit simple teasing, offhand comments,
or isolated incidents that are not “extremely serious.” Faragher
v. City of Boca Raton, 524 U.S. 775, 787 (1998).
While the name calling by C1 may have been unpleasant or inappropriate,
we agree with the AJ’s determination that C1’s conduct was the type
of teasing that does not rise to the level of a hostile work environment.
The AJ found that the four specific incidents of name calling alleged by
Complainant (November 14, 2006, December 8, 2006, January 3, 2007, and
February 1, 2007) were not sufficiently severe or pervasive. On appeal,
Complainant asserted that the name calling by C1 was sufficiently
severe or pervasive because it occurred three or four times a week.
Our review of the hearing transcript indicates that Complainant and TSO2
testified that the name calling by C1 occurred daily. However, we find
that Complainant has not shown that such name calling went beyond simple
teasing and rose to the level of creating a hostile work environment.
We note that Complainant testified generally that the name calling
“happened daily,” but did not provide specific details about any
incidents aside from the four incidents mentioned by the AJ. Similarly,
although TSO2 testified that the name calling happened “[p]retty much on
a daily basis,” she only provided specific details about the January 3,
2007 incident mentioned by the AJ.
Accordingly, we find that substantial evidence in the record supports
the AJ’s conclusion that Complainant failed to establish a claim of
hostile work environment harassment on the bases of sex and age.5
Claim 2 – Disparate Treatment
To prevail in a disparate treatment claim such as this, Complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. Co. v. Waters,
438 U.S. 567, 576 (1978). Proof of a prima facie case will vary
depending on the facts of the particular case. McDonnell Douglas, 441
U.S. at 804 n.14. The burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Dep’t
of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, Complainant must prove, by a preponderance of the evidence,
that the Agency’s explanation is pretextual. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor
Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
To establish a prima facie case of disparate treatment on the basis
of reprisal, Complainant generally must show that: (1) he engaged in a
protected activity; (2) the Agency was aware of the protected activity;
(3) subsequently, he was subjected to adverse treatment by the Agency;
and (4) a nexus exists between the protected activity and the adverse
treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340
(Sept. 25, 2000). Regarding his LOR, the record reflects that Complainant
has shown that: in December 2006, January 2007, and February 2007, he
informed S1 via email that C1 was creating a hostile work environment
by calling him names based on sex and age; and on February 17, 2007, S1
issued Complainant a LOR for unprofessional conduct. Therefore, we find
that Complainant has established a prima facie case of discrimination
on the basis of reprisal.
Once Complainant has established a prima facie case, the burden then
shifts to the Agency to articulate a legitimate, nondiscriminatory
reason for its actions. Texas Dep’t of Cmty. Affairs v. Burdine,
450 U.S. at 253. Here, S1 testified at the hearing that she issued
Complainant a LOR based on TSO1’s written statement, obtained during
her investigation, substantiating C1’s allegations that Complainant
had called him derogatory names based on his sexual orientation.
Because the Agency articulated legitimate, nondiscriminatory reasons
for its actions, the burden shifts to Complainant to demonstrate by the
preponderance of the evidence that the Agency’s reasons are a pretext
for discrimination. On appeal, Complainant argued that S1 should have
known that C1’s name calling allegation was false and that TSO1 was
biased against him.
After a careful review of the record, we discern no basis to disturb
the AJ’s conclusion that Complainant failed to establish a claim
of discrimination on the basis of reprisal. We agree with the AJ’s
finding that Complainant failed to show that the Agency’s reasons were
pretextual. First, we note that, regardless of whether Complainant
thought S1 should have believed C1, the Agency had an obligation
to investigate C1’s allegation that Complainant had called him a
derogatory name based on his sexual orientation. The Agency had an
obligation to foster a culture whereby its employees could bring such
misconduct to the attention of management and have confidence that such
complaints would be appropriately.6 Thus, there is no indication that
S1’s decision to investigate C1’s allegation against Complainant
was retaliatory. Second, we note that, during the course of the
investigation, S1 received a written statement from TSO1 substantiating
C1’s allegation. Specifically, TSO1 indicated in his February 2, 2007
written statement that he had heard Complainant call C1 a “faggot”
on a couple of occasions. We find no evidence that S1’s reliance on
TSO1’s statement was retaliatory.
Accordingly, we find that substantial evidence in the record supports
the AJ’s conclusion that Complainant failed to establish a claim of
discrimination on the basis of reprisal.
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 adopting the AJ’s finding that Complainant
failed to prove that the Agency discriminated against him as alleged.
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
__1/6/12________________
Date
1 The record reflects that Complainant is alleging discrimination on the
bases of sex and age for claim 1 and on the basis of reprisal for claim 2.
2 In a February 2, 2007 written statement and in his affidavit, C1
alleged that Complainant called him a “faggot” on numerous occasions.
3 The record reflects that S1 obtained written statements from eight
co-workers. In a statement dated February 2, 2007, a co-worker (TSO1)
wrote that he had heard Complainant call C1 a “faggot” on a couple
of occasions. In a statement dated February 3, 2007, another co-worker
(TSO2) wrote that she had never heard Complainant call C1 any names,
but had heard C1 call Complainant “girly girly” and “old man.”
4 On May 1, 2009, the AJ indicated during a telephonic conference
with Complainant and the Agency that she intended to make a finding
of liability against the Agency. In the introductory paragraph of
her decision, the AJ wrote that Complainant “presented sufficient
evidence to satisfy his burden of proof that he notified the Agency that
he believed he was being subjected to a hostile work environment based
on age and gender and the Agency failed to take prompt remedial action
in response to his allegations …” However, the remainder of the
decision clearly reflects that the AJ made a finding of no discrimination.
5 Because of our determination above, we need not address whether there
is a basis for imputing liability to the Agency.
6See Rogers v. Department of Defense, EEOC Request NO. 05940157 (February
24, 1995)(Commission found that a claim which arose from the agency’s
investigation of a complaint of harassment, failed to state a claim,
since the agency was legally obligated to investigate a complaint of
harassment).
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Office of Federal Operations
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