Diego J. Peña AT&T Services, Inc. Legal Midwest Labor Whitacre Tower General Attorney 208 S. Akard Street, Suite 2933 Dallas, Texas 75202-4208 (214) 757-3315 Phone (214) 486-8143 Fax diego.pena@att.com September 19, 2014 Veronica Zertuche, Esq. Deputy City Attorney City of San Antonio 100 Military Plaza, 3 rd Floor San Antonio, Texas 78205 Re: Matthew Hileman Complaint of Violation of Non-Discrimination Ordinance Complainant: Matthew Hileman Respondent: AT&T Services, Inc. Dear Ms. Zertuche: AT&T Services, Inc. ( AT&T ) submits this response to Mr. Matthew Hileman s claim of discrimination and retaliation in violation of the City of San Antonio s Non-Discrimination Ordinance ( NDO ). This response is without prejudice and without admitted liability, based on AT&T s understanding of the facts at this time, and it specifically reserves the right to amend, modify, or supplement this response if the facts so require. A. Mr. Hileman s Complaint Mr. Hileman s complaint alleges that when he worked for Resource Global Professions ( RGP ), he was assigned to work at AT&T. While Mr. Hileman was assigned to AT&T, he overheard two AT&T employees discussing a proposed NDO being considered by the City of San Antonio (the City ). He overheard this conversation on September 4, 2013. Mr. Hileman further alleges that on September 18, 2013, he found a sign on his chair that had the word fag circled with a line through it. After finding the note, Mr. Hileman walked out and abandoned his work assignment at AT&T. Mr. Hileman claims that AT&T violated Part II, Chapter 2, Article X of the NDO by discriminating and/or retaliating against him on the basis of his transgender status. AT&T denies Mr. Hileman s allegations that AT&T discriminated or retaliated against him, and denies that it terminated Mr. Hileman s employment with RGP. B. Summary of AT&T s Position The alleged September 4, 2013 conversation between the two AT&T employees cannot be made the basis of a complaint under the NDO because that discussion purportedly took place prior to the enactment of the NDO. The NDO became effective on September 5, 2013. With respect to the sign incident, AT&T fully investigated Mr. Hileman s claims of unlawful discrimination and found no evidence to substantiate his allegations. AT&T further maintains
that the NDO fails to provide the City legal authority to make a finding of discrimination. Therefore, AT&T requests that the City dismiss Mr. Hileman s claim. C. Factual Background RGP, Mr. Hileman s actual employer, assigned him to work at AT&T, at 1010 N. St. Mary s Street, in San Antonio, Texas. AT&T maintains and enforces a well-publicized EEO Policy that prohibits discrimination and harassment on the basis of race, color, religion, creed, national origin, sex, age, sexual orientation, gender, gender identity, marital status, citizenship status, creed, military status, veteran status, disability or any other protected characteristic. In early September 2013, the City of San Antonio was contemplating passing the NDO, which forbids any discrimination against City employees or City contractors on the basis of sexual orientation and/or gender identity, among other protected categories. The NDO was adopted by the City on September 5, 2013. Mr. Hileman claims that on or about September 4, 2013 around 7:05 am, he overheard a conversation between two AT&T employees, who were discussing the proposed NDO. These two employees worked in close proximity to Mr. Hileman s assigned work station. Neither of these two employees managed Mr. Hileman s assigned work duties at AT&T. Mr. Hileman was not a party to the conversation, and unbeknownst to either party, Mr. Hileman recorded their conversation on his cell phone. As pointed out in AT&T s August 18, 2014 letter to the Texas Attorney General, Mr. Hileman s recording violated Texas and federal law, and violated RGP s and AT&T s policies. After Mr. Hileman made a formal complaint to AT&T s internal complaint line on September 6, 2013, AT&T investigated his complaint. As AT&T investigated his concerns, Ms. Hortencia Morales, the AT&T manager who administered Mr. Hileman s work assignment, offered to relocate Mr. Hileman away from the managers he claimed offended him. Mr. Hileman declined Ms. Morales offer to relocate him. While AT&T maintains that the alleged conversation of September 4, 2013 falls outside the scope of the City s NDO, AT&T did investigate Mr. Hileman s allegations regarding the conversation incident. Both AT&T employees were interviewed and they denied making any offensive or threatening statements. At the time of the investigation, both employees were unaware of any persons working on their floor being transgendered. Both employees stated that they understood AT&T policies and reaffirmed that they would abide by all AT&T policies. On September 18, Mr. Hileman claims that someone left a sign on his chair that had the word fag circled with a line through it. Mr. Hileman left AT&T s premises and emailed his RGP supervisor about the sign incident. RGP informed Ms. Morales on September 19 regarding the sign incident and notified AT&T that Mr. Hileman left his work assignment and did not intend to return to AT&T. An RGP representative later retrieved Mr. Hileman s personal items and Mr. Hileman never returned to AT&T. Mr. Hileman has provided no evidence in his written complaint to the City that any AT&T employee placed the sign at his work location. Mr. Hileman did not provide any evidence other than the alleged sign that identified who could have placed this sign at his
work location. Nonetheless, AT&T investigated Mr. Hileman s complaint regarding the sign. AT&T interviewed the two employees involved in the September 4, 2013 discussion and another AT&T employee who sat near Mr. Hileman s cubicle. The two employees involved in the September 4 conversation knew nothing about the sign. AT&T found no evidence to substantiate that the two employees or any other AT&T employee placed the sign on Mr. Hileman s chair. D. Legal Authority and Analysis 1. Objections to Producing Requested Documents AT&T respectfully objects to producing the documents requested in the City s July 15, 2014 letter because the information is part of a pending investigation by the Equal Employment Opportunity Commission ( EEOC ) and disclosing such information to the City is not subject to the same protections afforded by the EEOC. On April 7, 2014, Mr. Hileman filed a charge of discrimination against both RGP and AT&T. In his charge against AT&T he alleges that he was discriminated against on the basis of his sex, sexual orientation and/or gender identity in violation of Title VII of the Civil Rights Act of 1964, as amended. He further alleges that he was retaliated against for making a complaint of sex discrimination. Section 2000e-5 of Title 47 of the United States Code provides that a charge of discrimination filed with the Equal Employment Opportunity Commission ( EEOC ): shall not be made public by the EEOC If the EEOC determines after such investigation that there is reasonable cause to believe that the charge is true, the [EEOC] shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion. Nothing said or done during and as a part of such informal endeavors may be made public by the [EEOC], its officers or employees, or used as evidence in a subsequent proceeding without the written consent of the persons concerned. Any person who makes public information in violation of this subsection shall be fined not more than $1,000 or imprisoned for not more than one year, or both. See also Attorney General Opinion OR2014-01248 (Jan. 22, 2014) (holding that the City of Corpus Christi was required to withhold information related to a charge filed with the City s Human Rights Commission). As a result, the information requested by the City is precluded from being released under section 2000e-5. Further, the City of San Antonio currently lacks investigative and enforcement protocols and procedures for its NDO that would include similar safeguards enacted by the EEOC. Thus, any information that AT&T submits to the City during this investigation is arguably subject to disclosure under the Texas Public Information Act. Having such information potentially disclosed to the public without the EEOC having concluded its investigation could prejudice AT&T and the employees whose privacy Mr. Hileman has compromised. As of the date of this letter, the EEOC has not concluded its review of Mr. Hileman s complaint. For this reason, AT&T cannot produce the EEOC s findings or conclusions. AT&T
objects to providing the organization charts and departmental information because Mr. Hileman was not an AT&T employee. Thus, any questions regarding his organizational chart, hiring, and employee discipline should be directed to RGP and not AT&T. Subject to and without waiving any objections contained in this response, AT&T will provide a copy of the Code of Business Conduct and AT&T s EEO policy which were in effect in 2013. 2. AT&T Did Not Violate the City s Non-Discrimination Ordinance. By Mr. Hileman s admission, the alleged conversation between the two AT&T employees occurred on September 4, 2014, prior to the effective date of the City of San Antonio s NDO. As such, any actions prior to September 5, 2013 the effective date of the City of San Antonio s NDO cannot form the basis for an actionable complaint. For this reason, AT&T would ask that any review of Mr. Hileman s complaint exclude the alleged September 4, 2013 conversation. When the City enacted the NDO on September 5, 2013, the NDO stated that no person shall on the grounds of race, religion, color, nation origin, sex, sexual orientation, gender identity, veteran status, age or disability be excluded from participation be denied the benefits of, or otherwise be subjected to discrimination or retaliation under any federally or non-federally funded city programs or activities administered by the city or its contractors. City of San Antonio Ordinance 2-640. The NDO approved by the City does not provide an enforcement mechanism for investigating a discrimination complaint against a third party contractor. Although Section 2-641 of the NDO references complaint procedures, it states the complaint procedures for Title VI transportation related programs, projects or activities known as Methods of Administration (MOA) can be found on the city s website. Nothing in the plain language of Section 2-641 can be construed to create a complaint procedure for reviewing complaints under Section 2-640 or establishing investigative jurisdictional authority. Additionally, there is nothing in the enacted NDO which gives the City fact finding authority to make a determination or finding of discrimination. Although there is a question as to whether the City has authority to investigate the complaint, even assuming that the sign could be part of an actionable complaint, Mr. Hileman has provided no evidence that AT&T violated the NDO and subjected Mr. Hileman to discrimination or retaliation. The NDO does not provide a standard or definition for what acts or actions constitute discrimination or retaliation for purposes of the NDO. The NDO also is not clear on whether Mr. Hileman, an employee of RGP, has standing to make a discrimination claim against AT&T. Mr. Hileman is not an AT&T employee. Applying traditional federal and state discrimination and retaliation law, however, Mr. Hileman s claim falls short of an actionable discrimination or retaliation claim. First, Mr. Hileman will have difficulty showing that he was discriminated against or harassed on the basis of being transgendered. The only actionable claim the City can arguably consider concerns the sign. There is no evidence that any AT&T employee placed the sign on his chair. AT&T has clear policies that prohibit discrimination on the basis of any protected category and it provides training on a regular basis. As soon as AT&T became aware of his complaint, it immediately investigated the matter, but was unable to substantiate Mr. Hileman s complaint.
Second, Mr. Hileman cannot prove a retaliation claim because he has not provided any evidence that there is a causal connection between his complaints of harassment and his allegation that he was terminated. Neither his employer RGP nor AT&T terminated Mr. Hileman. Mr. Hileman cannot show that but for his complaints he suffered an adverse employment action. The facts clearly indicate that Mr. Hileman was employed by RGP and he chose to voluntarily leave his work assignment at AT&T. E. Mediation Despite AT&T s strong objections to Mr. Hileman s claims, it agreed to mediate his claims. The mediation occurred on August 29, 2014, with former Fourth Court of Appeals Justice Phylis J. Speedlin serving as mediator. The parties were not able to resolve the matter. In conclusion, the evidence is clear that AT&T did not discriminate or retaliate against Mr. Hileman. AT&T also respectively objects to the City s request for information since it appears that the NDO fails to give the City the ability to investigate or make any findings of discrimination. AT&T respectfully requests that the City dismiss Mr. Hileman s complaint. Respectfully, Attachments Diego J. Pena