01a50741_r
03-15-2006
Abdul-Hakeem Muhammad, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
Abdul-Hakeem Muhammad v. Department of the Treasury
01A50741
March 15, 2006
.
Abdul-Hakeem Muhammad,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A50741
Agency No. 02-1089
Hearing No. 100-2003-0184X
DECISION
Complainant filed an appeal with this Commission from the September
30, 2004 agency decision which implemented the decision of the EEOC
Administrative Judge (AJ) finding no discrimination.
The record reveals that complainant, a grade level 14 Computer Scientist,
alleged that the agency discriminated against him:
1. On the bases of race (Black), and religion (Al-Islam) when,
continuing from September 12, 2001, he was subjected to derogatory and
offensive comments from his co-workers; and
2. On the bases of race, religion, age (D.O.B. February 16, 1946),
and in reprisal for prior EEO activity when on October 10, 2001, and on
October 16, 2002, complainant received an annual performance appraisal
which he feels did not accurately reflect the level of his performance.
At the conclusion of the investigation, complainant received a copy of
the investigative report and requested a hearing before an AJ. The AJ
issued a decision without a hearing (summary judgment).
Regarding claim 1, the AJ concluded that complainant failed to establish
a prima facie case of harassment. The AJ found that although complainant
established that he belonged to a protected group; that he was subjected
to unwelcome harassment; and that the harassment complained of was based
upon membership in a protected class, complainant failed to show that
the comments complained of were so severe or pervasive so as to have
altered the conditions of complainant's employment and created a hostile
work environment. The AJ noted that agency supervisors were unaware
of the comments, although complainant believed that supervisors were in
the vicinity and must have heard the comments. The AJ also noted that
complainant himself admitted that his work performance did not suffer
as a result of the comments.
In reaching the conclusion that a prima facie case of harassment was
not made, the AJ identified allegedly harassing comments complainant
stated were made by his co-workers. The AJ noted that complainant alleged
that on September 19, 2001, Computer Scientist-2 asked complainant if he
had been harassed; on September 25, 2001, Management Program Analyst-2
stated to another employee that "only those that look and dress like
a terrorist [are] treated like a terrorist; that on October 2, 2001 ,
the Program Analyst made a comment about "strip searching" complainant;
that on October 3, 2001, the Program Analyst asked complainant "[h]ow
is Afghanistan?" and "[a]re you with the Taliban?" The AJ also noted
that complainant also stated in a letter that on October 30, 2001, in
a meeting with complainant and four other co-workers, Employee A asked
complainant if he were a Muslim and when complainant responded "yes,"
Employee A said the "[complainant] might be a terrorist sympathizer.
I need to stop associating myself with you." Complainant then responded
that Employee A was harassing complainant and that he "could get"
Employee A for discrimination, to which Employee A responded that he
would make certain that complainant "would be dead and not in court." The
AJ noted that the comment made by Employee A was the most severe remark
and completely inappropriate.
Regarding claim 2, the AJ concluded that complainant established a prima
facie case of age and religious discrimination, but failed to establish
a prima facie case of race or reprisal discrimination. In so finding,
the AJ noted that for the 2001 evaluation, two employees, computer
scientists, were rated higher by complainant's supervisor. The two were
African Americans. The AJ further noted that both Computer Scientists
were within the protected age group, one younger and one older than
complainant and that they were not of complainant's religion. The AJ
noted that for the 2002 evaluation, one of the two Computer Scientists
who received a rating higher than complainant in 2001, was again rated
higher in 2002, by complainant's supervisor. Regarding reprisal, the
AJ noted that complainant's participation in EEO activity occurred in
1995 to 1996 when he and his current supervisor were members of a class
action complaint which was settled in 1997. The AJ determined that the
four to seven years between the participation in EEO activity and the
evaluations was too long a period of time to infer a retaliatory motive.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ noted that in the FY
2001 mid-year progress review signed March 21, 2001, concerns were raised
regarding complainant's performance. The AJ also noted the statement
of complainant's supervisor that although complainant's performance
improved a little during the 2002 evaluation period, it did not improve
to the extent that the rating should be raised. The AJ also found that
complainant did not establish that more likely than not, the agency's
articulated reasons were a pretext to mask unlawful discrimination.
In reaching this conclusion, the AJ noted that complainant maintained that
discrimination was shown when complainant's supervisor apologized for the
2001 evaluation and indicated that it was an "organization rating" and
"everyone was dropped down" and that complainant's second level supervisor
indicated that management was told to give employees the ratings that
they had received the previous year. The AJ noted that assuming that
complainant's supervisor and his second line supervisor had made those
statements, those statements indicated a managerial decision affecting
all employees rather than an animus based on a prohibited factor. The AJ
also addressed complainant assertion that his supervisor's discriminatory
motive was shown by the supervisor's failure to rate complainant as
highly as the second line supervisor had done when the second line
supervisor was complainant's first line supervisor for complainant's
2000 evaluation. The AJ indicated that because complainant's ratings
were lower after being supervised by the present supervisor, that fact
did not automatically translate to a finding of discrimination. The AJ
noted that there was no evidence that complainant's supervisor had based
his rating on a prohibited factor.
ANALYSIS AND FINDINGS
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, religion or in
reprisal is unlawful. A single incident or group of isolated incidents
will not be regarded as discriminatory harassment unless the conduct
is severe. See Burlington Industries v. Ellerth, 524 U.S. 742 (1998).
An objectively hostile or abusive work environment exists when a
reasonable person would find it hostile or abusive and the complainant
subjectively perceives it as such. In a case of co-worker harassment,
an agency is responsible for acts of harassment in the workplace where
the agency (or its agents) knew or should have known of the conduct,
unless it can show that it took immediate and appropriate corrective
action. Equal Employment Opportunity Commission Enforcement Guidance:
Vicarious Employer Liability for Unlawful Harassment by Supervisors
(June 18, 1999).
To determine whether a work environment is objectively hostile or
abusive, the trier of fact must consider all of 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 v. Forklift Systems, Inc., 510
U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems,
Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. Accordingly,
harassment is actionable only if the harassment to which the complainant
has been subjected to was sufficiently severe or pervasive to alter the
conditions of complainant's employment.
Generally, complainant can establish a prima facie case of discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. To establish a prima facie case of
harassment, a complainant must show that: (1) complainant belongs
to a statutorily protected class; (2) complainant 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 the
statutorily protected class; and (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) some basis exists to
impute liability to the employer, i.e., supervisory employees knew or
should have known of the conduct but failed to take corrective action.
In order to establish a prima facie case of age discrimination,
complainant must show that complainant was over forty years of age,
that complainant was subjected to an adverse employment action and
that complainant was treated less favorably than other similarly
situated employees younger than complainant. See Reeves v. Sanderson
Plumbing Prods., Inc. 530. U.S. 133, 142 (2000). Furthermore,
it is well-established that when a complainant alleges that he has
been disparately treated by the agency as a result of unlawful age
discrimination, liability depends on whether the protected trait actually
motivated the agency's decision. Reeves, 530 U.S. at 141.
Complainant can establish a prima facie case of reprisal discrimination
by showing that: (1) complainant engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
complainant was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
In a complaint which alleges disparate treatment and there is an absence
of direct evidence of discrimination, the allocations of burdens and
the order of presentation of proof is a three-step process. A claim
of disparate treatment is examined under the three-part analysis first
enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he or she must first establish
a prima facie case of discrimination by presenting facts that, if
unexplained, reasonably give rise to an inference of discrimination,
i.e., that a prohibited consideration was a factor in the adverse
employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). Next, the agency
must articulate a legitimate, nondiscriminatory reason for its actions.
See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). If the agency is successful in meeting its burden, complainant
must prove, by a preponderance of the evidence, that the legitimate reason
proffered by the agency was a pretext for discrimination. Id. at 256.
However, the ultimate burden of persuading the trier of fact that the
agency intentionally discriminated against complainant remains at all
times with complainant. Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 143 (2000).
The Commission's regulations allow an AJ to issue a decision without a
hearing when the AJ finds that there is no genuine issue of material
fact. See 29 C.F.R. � 1614.109(g). This regulation is patterned after
the summary judgment procedure set forth in Rule 56 of the Federal Rules
of Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
The record reflects that in a deposition taken on October 31, 2003,
when complainant was asked whether Employee A had harmed him, tried
to harm him, or threatened him, complainant's response was "no."
The deposition also reflects that when complainant was asked whether
he informed his supervisor, his second line supervisor, or anyone else
in management that comments being made in the workplace bothered him,
complainant stated that he did not remember.
The affidavits of complainant's supervisor are contained in the record.
The supervisor stated that he was complainant's first line supervisor
since December 2000. Complainant's supervisor stated that in preparing
the 2001 and 2002 performance evaluations, he relied primarily on
complainant's work products, including correspondence with customers,
self-assessment, feedback from customers and feedback from superiors.
He stated that the ratings were based on the work performed, feedback from
stakeholders, documentation produced, feedback from superiors and that for
the 2001 performance evaluation, he also relied on the midterm assessment.
Complainant's supervisor stated that the ratings were warranted by the
guidelines. He stated that in order to receive an "exceeded" rating,
an employee was required generally to exceed both the responsibilities
and commitments in the employee's Performance Agreement.
Regarding his midterm evaluation of complainant conducted on March 21,
2001, complainant's supervisor stated that complainant was told that
management needed him to look out for the best interest of customers.
Complainant's supervisor also stated that complainant was also notified
about the lack of quality in the Function Point White paper that
complainant had put together. He denied that prohibited factors played
a part in the rating received in October 2001.
The record contains the affidavits of complainant's second line
supervisor. Complainant's second line supervisor stated that he
was complainant's second line supervisor from December 31, 2000,
through October 21, 2002. Concerning complainant's evaluations,
complainant's second line supervisor stated that he was the reviewing
official and relied on complainant's first line supervisor. He further
stated that complainant was given the ratings he received because he
met the responsibilities and commitments defined in the Performance
Agreements and that the rating was based on the supervisor's analysis,
coupled with customer feedback, review of correspondence, other work
products and complainant's self-assessment. Complainant's second line
supervisor stated that complainant did not get a higher rating because
he did not demonstrate exceptional responsibilities or commitments
during the rating periods. He further stated that to receive a higher
rating, the employee would have had to have demonstrated exceptional
performance in either responsibilities or commitments; have overcome
significant organizational challenges such as coordination with external
stakeholders or insufficient resources; and the employee's effectiveness
and contributions had to have impact beyond the employee's purview.
The record contains complainant's performance evaluations which reveal
that complainant received ratings of "met" for 2001 and 2002.
After a careful review of the record, the Commission finds that grant of
summary judgment was appropriate, as no genuine dispute of material fact
exists. We find that the AJ's decision properly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
Regarding claim 1, we agree with the AJ that complainant failed to
establish a prima facie case of harassment discrimination. The Commission
cannot find that the workplace was so poisoned with discriminatory
animus and permeated with discriminatory ridicule and insult so as to
have altered the conditions of complainant's employment. Nor can the
Commission find that the incidents were sufficiently continuous, and
not merely episodic, to be considered pervasive. Further, viewing the
evidence in a light most favorable to complainant and considering all
complainant's claims to be true, the Commission finds that the incidents
complained of were not sufficiently severe or pervasive so as to have
created a hostile work environment.
Regarding claim 2, assuming complainant established a prima facie case
of discrimination, we find that the agency articulated legitimate,
non-discriminatory reasons for the performance evaluations it gave
complainant. Here, the agency stated that complainant did not deserve
a higher rating because of his performance. Moreover, complainant
failed to show that the agency's real reason for the ratings was false
or that discrimination was the real reason for the agency's action.
A complainant at all times bears the ultimate burden of persuasion to show
by a preponderance of the evidence that he was a victim of intentional
discrimination.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
March 15, 2006
__________________
Date