0120103035
07-09-2012
Daryl Mosby, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.
Daryl Mosby,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120103035
Hearing No. 430-2008-00265X
Agency No. EEOSFS-07-0962-F
DECISION
Complainant filed an appeal with this Commission from an Agency final order, dated June 17, 2010, concerning an 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
During the relevant time Complainant was a Customer Contact Representative (hereinafter referred to as "Contact Rep") at the Agency's Customer Contact Center in Richmond, Virginia. As a Contact Rep, Complainant answered tax payer questions received through an Agency toll-free number.
According to Complainant, on June 7, 2007, his second-line supervisor (Program Manager) came to his desk, stood over him and stared. The Program Manager then stepped back, folded her arms and continued to stare. Days later, on June 13, 2007, the Program Manager again came to Complainant's desk and stared at him. When Complainant's co-worker asked the Program Manager if there was a problem, the three individuals exchanged words. The Program Manager left, yelling to Complainant and his co-worker that she was "sick of the two of you." On June 18, 2007, the Program Manager threatened to write up Complainant and his colleague and place the discipline in his file for three years, in violation of Agency disciplinary policy.
Believing that the Program Manager's actions constituted unlawful harassment, Complainant contacted an EEO Counselor. Informal efforts to resolve Complainant's concerns were unsuccessful. On September 4, 2007, Complainant filed a formal complaint based on race (black).
The Agency framed the claim as follows:
Whether Complainant was subjected to harassment when
(a) On or about June 7, 2007 the Project Manager came to his desk, stood over him, and stared at him without speaking.
(b) On June 13, 2007, the Project Manager said "I'm sick of the two of you" in reference to Complainant and a co-worker; and,
(c) On June 18, 2007, the Project Manager proposed to issue a letter to be placed in Complainant's file.
After the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. However, over Complainant's objections, the AJ assigned to the case granted the Agency's motion for summary judgment. On June 8, 2010, the AJ issued a decision without a hearing finding no discrimination.
The AJ found that Complainant did not establish a prima facie case of racial harassment. The AJ found that even if Complainant's version of the three events referenced above was true, they did not rise to the level of actionable harassment. Further, the AJ found that the Project Manager had a legitimate, non-discriminatory reason for approaching Complainant in events (a) and (b). The Program Manager was advised that Complainant was not logged onto his telephone system and unable to receive calls, even though Complainant's tour of duty had started. According to the AJ, Complainant did not present any evidence that the Project Manager approached him for any other reason or that she did not confront other employees, outside of his protected class, who were not logged onto their telephones. Complainant did not identify any similarly-situated comparators that were treated more favorably. The AJ concluded that the alleged events were minor, isolated incidents that did not create an abusive working environment.
On June 17, 2010, the Agency issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
ANALYSIS AND FINDINGS
Standard of Review
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.B. (November 9, 1999) (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, � VI.A. (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").
Summary Judgment
We must first 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.
On appeal, Complainant argues that genuine issues of material fact exist and the AJ erred in granting summary judgment. The Commissions disagrees. According to Complainant, records establish that he was logged onto his computer at 7:29 a.m., as required. Consequently, he reasons, "there was no need for her to come to [his] work area" except to subject him to racial harassment. The Project Manager approached Complainant because she was informed that although his tour of duty had started, Complainant was not available to take calls. Complainant does not dispute that his computer was on "WRAP" or "IDLE" and that he was not ready to take calls when the Project Manager appeared at his work station. Therefore, we find that there are no genuine issues of material fact. The AJ's decision to grant the Agency's motion for a decision without a hearing was proper.
Harassment
To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their 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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).
In the instant case, the alleged events were not sufficiently severe or pervasive to create a hostile work environment. The Complainant alleges that the Project Manager came to his work area and stood over him on a couple of occasions, said she was "sick of the two of you", and threatened discipline. Such incidents do not have the effect of unreasonably interfering with the work environment, particularly in light of the fact that the Project Manager's actions came after she had been notified that Complainant was not presently available to take telephone calls. Further, Complainant has not established a nexus between his race and the Project Manager's actions.
Therefore, the Commission finds that Complainant has not established that he was subjected to unlawful discrimination based on his race. The Agency's decision finding no discrimination was proper.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency's final order implementing the AJ's decision without a hearing, finding no discrimination.
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
July 9, 2012
__________________
Date
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0120103035
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120103035
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