0120110801
02-17-2012
Darryl Davis, Complainant, v. Arne Duncan, Secretary, Department of Education, Agency.
Darryl Davis,
Complainant,
v.
Arne Duncan,
Secretary,
Department of Education,
Agency.
Appeal No. 0120110801
Hearing No. 570-2008-00863X
Agency No. ED20074500
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s September 30, 2010 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a GS-13 Program Management Analyst at the Agency’s Institutional
Development Undergraduate Educational Services (IDUES) program in the
Office of Postsecondary Education in Washington, DC. On July 23, 2007,
Complainant filed a formal complaint alleging that he was subjected to
hostile workplace discrimination on the bases of race (African-American),
sex (male), and reprisal for prior protected EEO activity under Title
VII when: 1) On December 10, 2007, he received an overall evaluation of
"Minimally Successful" on his Education Department Performance Appraisal
System (EDPAS) with a rating of "Unsuccessful" on the element of Customer
Service; 2) In December 2007, his second-line supervisor (SLS) reported
Complainant's verbal threats against his former supervisor to the Federal
Protective Service; and 3) On January 15, 2008, his SLS placed him on
a Performance Improvement Plan (PIP).1
At the conclusion of the investigation, Complainant was provided with a
copy of the report of investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested
a hearing within the time frame provided in 29 C.F.R. § 1614.108(f).
On September 15, 2010, the AJ issued a summary decision finding no
discrimination. In reaching this decision, the AJ determined that even if
Complainant could establish a prima facie case, the Agency had articulated
legitimate, nondiscriminatory reasons for its actions. Management stated
that Complainant's current performance ranged from unsatisfactory to
minimally successful. In prior rating periods, Complainant “failed
to keep official files consistent with departmental standards.”
Specifically, Complainant's files often lacked key documentation and his
grant notification awards contained incorrect grant amounts and grantee
identities. Complainant failed to obtain appropriate Congressional
approvals before notifying institutions of their grant awards, and
he was unable to communicate proper program standards. According to
management, Complainant’s performance problems persisted for the October
2006/September 2007 rating period. The SLS noted that Complainant was
a “poor performer” and did not have a good understanding of his
responsibilities. The SLS further noted that Complainant was unable to
execute his assignments in a satisfactory manner.
With respect to Complainant's purported threats against his former
supervisor, the SLS attested that Complainant came to his office and
stated to him, "If you do not move me to another team and I have to
continue to work with her (former supervisor), I will have to knock her
out." The SLS noted that the former supervisor was upset upon learning
that Complainant had said this and told the SLS that there were other
instances in which Complainant had threatened her. In his response,
Complainant failed to dispute the SLS’s version of the encounter and
his reasons for contacting the Federal Protective Service.
Regarding Complainant being put on a PIP, Complainant's former supervisor
stated that because Complainant's performance rating in September 2007
was minimally successful, Agency regulations required that she place
him on a PIP. The SLS became responsible for monitoring Complainant's
performance after Complainant's former supervisor was reassigned to
another office. He stated that the PIP was implemented to improve
Complainant's performance which he found to be unsatisfactory based on
his own observations. Specifically, the SLS stated that Complainant's
written documents often contained incorrect grammar that had to be sent
back for revision or which required him (the SLS) to personally revise.
The AJ noted that Complainant did not dispute the SLS’s testimony and
offered no evidence that the decision to place him on a PIP was based
on his protected bases.
In conclusion, the AJ found that the events of which Complainant
complains, either individually or collectively fail to rise to the level
of unlawful harassment prohibited by Title VII. Most importantly, there
is no evidence that any of the actions or decisions of Agency management
were motivated by unlawful reasons. Complainant failed to establish that
any of management's reasons for its actions were pretextual or unworthy
of belief. Complainant failed to establish discrimination under either
the theory of disparate treatment or unlawful harassment.
On appeal, Complainant asserts, inter alia, that the AJ improperly
entered summary judgment in this matter. He further asserts that the
AJ did not adequately address his claims of harassment.
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.
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. § 1614.110(a), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. § 1614.405(a). See EEOC Management
Directive 110, Chapter 9, § VI.A. (November 9, 1999). (explaining that
the de novo standard of review “requires that the Commission examine
the record without regard to the factual and legal determinations of
the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant
submissions of the parties, and . . . issue its decision based on the
Commission’s own assessment of the record and its interpretation of
the law”).
Harassment of an employee that would not occur but for the employee’s
race, color, sex, national origin, age, disability, religion or prior
EEO activity is unlawful, if it is sufficiently patterned or pervasive.
Wibstad v. United States Postal Service, EEOC Appeal No. 01972699
(Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39
(D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift
Systems, Inc. at 3, 9 (March 8, 1994). In determining that a working
environment is hostile, factors to consider are the frequency of the
alleged discriminatory conduct, its severity, whether it is physically
threatening or humiliating, and if it unreasonably interferes with an
employee’s work performance. See Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court
has stated that: “Conduct that is not severe or pervasive enough to
create an objectively hostile work environment - an environment that
a reasonable person would find hostile or abusive - is beyond Title
VII’s purview.” Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile environment harassment, complainant
must show that: (1) he belongs to 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 his 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. See Henson v. City of Dundee, 682 F.2d 897
(11th Cir. 1982). The harasser's conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim's circumstances.
Enforcement Guidance at 6.
An employer is subject to vicarious liability for harassment when it is
"created by a supervisor with immediate (or successively higher) authority
over the employee." Burlington Industries, Inc., v. Ellerth, 524
U.S. 742, 118 S.Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524
U.S. 775, 118 S.Ct. 2275, 2292-93 (1998). When the harassment does not
result in a tangible employment action being taken against the employee,
the employer may raise an affirmative defense to liability. The agency
can meet this defense, which is subject to proof by a preponderance
of the evidence, by demonstrating: (a) that it exercised reasonable
care to prevent and correct promptly any harassing behavior; and (b)
that appellant unreasonably failed to take advantage of any preventive
or corrective opportunities provided by the agency or to avoid harm
otherwise. Burlington Industries, Inc., v. Ellerth, 118 S.Ct. at 2270;
Faragher v. City of Boca Raton, 118 S.Ct. at 2293; Enforcement Guidance:
Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice
No. 915.002 (June 18, 1999). This defense is not available when the
harassment results in a tangible employment action (e.g., a discharge,
demotion, or undesirable reassignment) being taken against the employee.
Here, Complainant asserted that based on his statutorily protected
classes, management continuously subjected him to a hostile work
environment. However, we find that Complainant has not shown that he
was subjected to harassment in the form of unwelcome verbal or physical
conduct involving his protected classes, or the harassment complained of
was based on his statutorily protected classes. Further, Complainant
has not shown that the purported harassment had the purpose or effect
of unreasonably interfering with the work environment and/or creating an
intimidating, hostile, or offensive work environment. While Complainant
has cited various incidents where Agency management took actions that
were either adverse or disruptive to him, we find that Complainant fails
to show that these incidents were as a result of unlawful discrimination.
To the extent Complainant is alleging disparate treatment with respect
to his claims, he has not shown that the Agency's reasons for its actions
were a pretext for discrimination.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the Agency's final order,
because the Administrative Judge’s issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred.
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
February 17, 2012
__________________
Date
1 Complainant had initially proffered two additional claims, one
concerning a reassignment and the other regarding a denial of a within
grade increase. By Order for Partial Dismissal dated March 19, 2009,
Complainant's claim of denial of a reassignment was dismissed by the
Administrative Judge as adjudicated in a prior complaint and therefore,
barred by the doctrine of collateral estoppel. We affirm this dismissal.
Complainant withdrew his claim of denial of a within grade increase by
Notice dated January 13, 2009.
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0120110801
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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