0120131038
04-30-2015
Complainant, v. Deborah Lee James, Secretary, Department of the Air Force, Agency.
Complainant,
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120131038
Hearing No. 451-2012-00133X
Agency No. 7A0J11011F13
DECISION
On December 17, 2014, the Equal Employment Opportunity Commission (EEOC or Commission) received Complainant's timely appeal from the Agency's November 19, 2012, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Facility Maintenance Clerk, GS-5, at the Agency's Civil Engineering Squadron, 502 Air Base Wing, Fort Sam Houston in Texas.
On May 17, 2011, Complainant filed an EEO complaint, as amended, alleging that the Agency subjected him to a discriminatory hostile work environment based on his race/color (White), national origin (German), sex (male), religion (most closely aligned with Buddhism), disability (pain, diabetic, leg), age (67 - 68), and reprisal for prior protected EEO activity when his first line supervisor (S1):
1. On or about April 1, 2011, questioned him about his religious beliefs; and occasionally preached to him.
2. On April 8, 2011, would not process his Workers' Compensation paperwork (Form CA-1).
3. On April 13, 2011, confronted him in a threatening manner, stepped in his personal space, pointed his finger and hollered at him.
4. On December 14, 2011, removed his IWIMS (used to track work requests) account without notification.
Following an investigation, Complainant requested a hearing. Over his opposition thereto, an Equal Employment Opportunity Commission Administrative Judge (AJ) granted the Agency's Motion for a Decision Without a Hearing, and found no discrimination. The Agency subsequently issued a final order adopting the AJ's decision.
BACKGROUND
In deciding to issue a decision without a hearing, the AJ found that there were no genuine issues of material fact, that the record was adequately developed, and that Complainant had the opportunity at the hearing to supplement the record.
Regarding the religious belief and preaching matter, the AJ found that Complainant raised two specific incidents. Specifically, he alleged that on April 1, 2011, S1 asked him if he believed in God. Complainant stated he responded no, asked him not to talk about it, but S1 kept going on and on. Complainant wrote that he walked away, and S1 continued preaching to others but he could not see who they were. Second, on January 9, 2012, S1 (who ceased supervising Complainant soon after April 14, 2011) and another person talked about what they were going to do over the weekend and their satellite churches. In opposition to the Agency's Motion for a Decision Without a Hearing, Complainant argued that S1 preached to him three times, albeit two may have occurred when he was not yet his supervisor.
The AJ found that incident 2 did not occur as alleged. When Complainant went to sit in a chair on April 7, 2011, around 2:20 PM, he missed it and fell. He notified the Agency the next day. The AJ found that S1 was not at work on Friday, April 8, and Monday, April 11, was his day off. Nevertheless, S1 came in on Monday to process the form but was unsuccessful because of electronic problems. It is uncontroverted that S1 tried to process the form on Monday, April 11 and Tuesday, April 12, but was unable to do so because the system froze. The AJ found that S1 completed and signed the form on April 13, 2011, and this is documented.
Incident 3 arose out of S1, at the behest of Complainant's second line supervisor, calling Complainant at home on April 13, 2011, and telling him he needed to submit a request for leave form because he was not at work. The record suggests Complainant was irritated about this because when he came into work on April 14, 2011, and gave the request form to S1, Complainant said he was on his own time - sick leave - and walked off. A confrontation then occurred. The AJ recounted S1's statement that Complainant pointed at him, yelled that he was on his own time, and said he did not have to listen. The AJ recounted the statement of one of Complainant's co-worker's, who witnessed the confrontation, that Complainant told S1 he did not have time to talk to him because he was on his own time, and that he called S1 a little SOB or fart or something. Complainant's second line supervisor, who also witnessed part of the confrontation, stated that when S1 was against the wall with Complainant somewhat close he heard Complainant call S1 a little fart. Complainant did not state in his affidavit that S1 pointed his finger and hollered at him. He did state S1 got in his face and chewed him out. Regarding the confrontation, the AJ found that other than his bare assertions, Complainant did not address the testimony of his co-worker or his second line supervisor and provided no evidence contradicting their version of the incident.
Regarding incident 4, the AJ found that Complainant's IWIMS account was removed because his job changed, he no longer needed it to perform his duties, and there were a limited number of licenses to authorize IWIMS users so the authorization was given to someone who needed it. The AJ found that Complainant admitted he no longer needed access to IWIMS to do his job.
The AJ found that Complainant did not establish a prima facie case of harassment discrimination. She found that the evidence in the record was insufficient to show that the incidents to which Complainant was subjected were sufficiently severe or pervasive to alter the conditions of his employment and create an abusive working environment. Further, the AJ found that Complainant conceded that he was not admonished about his performance and that his employment opportunities were not affected. The AJ also found that Complainant did not show he was disparately treated. Complainant stated that he complained to his second and third line supervisors about S1 preaching, suggesting he did so after the April 1, 2011, incident, but S1 did not stop. The AJ noted that Complainant conceded, however, that S1 ceased supervising him in April or May 2011. This occurred because of the April 14, 2011, incident.
Complainant retired around October 2012. On appeal, he asks why S1 was allowed to preach on government time.
In opposition to the appeal the Agency argues that its final order should be affirmed.
ANALYSIS AND FINDINGS
We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 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, issuing a decision without holding a hearing is not appropriate.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
Harassment of an employee that would not occur but for the employee's age, race, color, sex, national origin, age, disability, religion or reprisal is unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985). A single incident or group of isolated incidents will not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII, the ADEA, or the Rehabilitation Act must be determined by looking at all the circumstances, including 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, 510 U.S. 17 (1993).
Complainant alleges that he was subjected to a hostile work environment and harassment. To establish a prima facie case of hostile environment harassment, a complainant must show that: (1) he is a member of a statutorily protected class; (2) he 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. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. �1604.11.
Based upon a review of the record, we agree with the AJ's finding that Complainant did not make out a prima facie case of harassment discrimination. As found by the AJ, the evidence in the record was insufficient to show that the incidents to which Complainant were subjected were sufficiently severe or pervasive to alter the conditions of his employment and create an abusive working environment.
Accordingly, the FAD is AFFIRMED.
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
April 30, 2015
__________________
Date
2
0120131038
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131038