Francis Hanratty v. Department of the Army ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FRANCIS J. HANRATTY, III, DOCKET NUMBER
Appellant, AT-0752-17-0669-I-1
v.
DEPARTMENT OF THE ARMY, DATE: July 25, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Howard Drew, Fort Rucker, Alabama, for the appellant.
Weston C. Harlan, Fort Rucker, Alabama, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his removal for sex discrimination. 2 Generally, we grant petitions such
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
The agency used the term “gender discrimination” to describe the appellant’s conduct.
Initial Appeal File, Tab 4 at 12, 44. As the Supreme Court held in Bostock v. Clayton
County, discrimination based on “gender” is discrimination based on sex. Bostock v.
Clayton County, 590 U.S. ___, 140 S. Ct. 1731, 1741 (2020) (holding that “it is
2
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to apply the correct legal standard to the charge of sex
discrimination, we AFFIRM the initial decision.
¶2 When, as here, an agency charge of discrimination does not refer to internal
agency policy, the agency must prove that the appellant’s conduct constituted
discrimination under Title VII of the Civil Rights Act of 1964. See Gilmore v.
Department of the Army, 87 M.S.P.R. 579, ¶ 20 (2001); Yeabower v. Department
of Agriculture, 10 M.S.P.R. 386, 389 (1982). Although the administrative judge
applied Title VII standards to her analysis of the charge, she relied on the
framework applicable when an appellant seeks to establish that discrimination
motivated an agency to take a personnel action against him. Initial Appeal File
(IAF), Tab 35, Initial Decision at 5-11. Here, the agency did not allege that the
appellant took a personnel action against anyone but, rather, that he engaged in
sex discrimination by making offensive remarks in the classroom. IAF, Tab 4
impossible to discriminate against a person for being homosexual or transgender
without discriminating against that individual based on sex”) . We need not,
accordingly, distinguish between sex and gender discrimination.
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at 89-90. Thus, we modify the initial decision to apply the correct standard, still
finding that the agency proved the charge.
¶3 Discrimination with respect to the “terms, conditions, and privileges” of
one’s employment “includes requiring people to work in a discriminatorily hostile
or abusive environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993). Thus, “[w]hen the workplace is permeated with discriminatory
intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter
the conditions of the victim’s employment and create an abusive working
environment, Title VII is violated.” Id. Title VII does not prohibit all workplace
harassment; rather, it forbids only conduct that constitutes discrimination because
of a protected category and is sufficiently severe or pervasive to alter the terms
and conditions of the victim’s employment and to create an objectively hostile
and abusive work environment. See Oncale v. Sundowner Offshore Services, Inc.,
523 U.S. 75, 80-81 (1998). Accordingly, to prove the charge in this case, the
agency must prove by preponderant evidence that the appellant’s conduct was
based on the victim’s sex and that it created a hostile work environment. 3 Id.;
5 C.F.R. § 1201.56(b)(1)(ii).
¶4 This standard for determining whether conduct constitutes a hostile work
environment under Title VII takes a middle path between making actionable any
conduct that is merely offensive and requiring the conduct to cause a tangible
psychological injury. Viens v. Department of the Interior, 92 M.S.P.R. 256, ¶ 9
(2002). Conduct that is not severe or pervasive enough to create an objectively
hostile or abusive work environment—an environment that a reasonable person
would find hostile or abusive—is beyond Title VII’s purview. Id. If the victim
has not subjectively perceived the environment as abusive, the conduct has not
actually altered the conditions of the victim’s employment, and there is no
3
Preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
4
Title VII violation. Id. Determining whether the environment is hostile or
abusive must be made by examining all the circumstances, including the
frequency of the discriminatory conduct, its severity, whether it was physic ally
threatening or humiliating, or a mere offensive utterance, and whether it
unreasonably interfered with an employee’s work performance. Id., ¶ 10. Simple
teasing, offhand comments, and isolated incidents (unless extremely serious) will
not amount to discriminatory changes in the terms and conditions of employment.
Id.¶5 We find no basis to disturb the administrative judge’s conclusions that the
appellant made the comments attributed to him in specifications B through E, that
his comments were objectively offensive, and that he created a discriminatory
environment toward the female students based on their sex. See, e.g., Crosby v.
U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb
the administrative judge’s findings when she considered the evidence as a whole,
drew appropriate inferences, and made reasoned conclu sions on issues of
credibility). In addition, considering all the facts and circumstances, we find that
Students B and C subjectively perceived the classroom environment to be hostile
and that the appellant subjected them to unwelcome conduct related to their sex
that unreasonably interfered with their ability to learn and created a hostile work
environment. See Hiebert v. Department of Transportation, EEOC Appeal No.
01A05253, 2003 WL 21302525, at *1-*2 (2003) (finding that sexist comments,
ridicule, and sex-based jokes in the workplace created a hostile work
environment). Therefore, we find that the agency proved that the appellant
subjected Students B and C to a hostile work environment. On the other hand, the
agency has not shown that Students D and E subjectively perceived the
environment to be hostile or abusive, and, consequently, specifications D and E
do not contribute to a finding of hostile work environment.
¶6 In light of the foregoing, we find that the agency proved the charge of sex
discrimination. See Burroughs v. Department of the Army, 918 F.2d 170, 172
5
(Fed. Cir. 1990) (stating that, when more than one event or factual specification
supports a single charge, proof of one or more, but not all, of the supporting
specifications is sufficient to sustain the charge).
NOTICE OF APPEAL RIGHTS 4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wis h to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your cas e by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
4
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
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within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals fo r the
Federal Circuit, you must submit your petition to the court at the fo llowing
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the F ederal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
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with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
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(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
5
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the P resident on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competen t jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our websi te at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.