0120080863
01-28-2010
David W. Fuller, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
David W. Fuller,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120080863
Hearing No. 450-2007-00330X
Agency No. 200305492006103115
DECISION
On December 3, 2007, complainant filed an appeal from the agency's
November 7, 2007 final order concerning his equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
For the following reasons, the Commission AFFIRMS the agency's final
order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Program Support Clerk at the agency's Veterans Medical Center
facility in Dallas, Texas. On August 31, 2006, complainant filed an EEO
complaint alleging that he was discriminated against on the basis of sex
(male) when he was subjected to sexual harassment. In his complaint,
complainant described the following incidents of harassment:
a. In mid-June 2006, a female coworker, E1, stated to complainant
that she "had a man over at her house and he could not perform, so she
kicked him out [and] needed someone who could do the job," to which
complainant replied "you need a real man," and the female coworker then
replied "you don't like black women; you can't handle a black woman."
b. On or about July 1, 2006, E1 came to complainant's work area in
"very tight jeans rubbing her buttocks" and then stated, "I know it's
nice, but you can't have it, [complainant], you can't handle a black
woman."
c. On or about July 14, 2006, E1 "rubbed her breasts" against
complainant.
d. On or about July 24, 2006, complainant's supervisor, S1,
reassigned him as a result of an EEO complaint filed by E1, accusing
him of sexual harassment.
e. On or about July 24, 2006, complainant notified S1 that he
had been subjected to sexual harassment by E1, but management took no
appropriate action.
Previously, in David Fuller v. Department of Veterans Affairs,
EEOC Appeal No. 0120070621, the Commission reversed the agency's
dismissal of complainant's complaint pursuant to 29 C.F.R. �1614.107(a).
Complainant's complaint was remanded to the agency for an investigation.
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. Over the complainant's objections, the AJ assigned to the
case granted the agency's September 17, 2007 motion for a decision without
a hearing and issued a decision without a hearing on October 25, 2007.
In her decision the AJ found that complainant failed to establish a
prima facie case of sexual harassment because complainant failed to
establish that the agency knew or should have known of the harassment
in question and failed to take prompt remedial action. Rather, the AJ
found the undisputed evidence showed that complainant did not report the
incidents until after his duty station was changed and after he had been
identified by E1 in a complaint of sexual harassment made on July 10,
2006. The AJ found that complainant argued in response to the agency's
motion that he was treated differently because of his race (Black), but
the AJ noted that complainant's complaint was based on sex, not on race.
Even if complainant had established a prima facie case of sexual
harassment, the AJ found that the agency had already separated E1 and
complainant by reassigning complainant to a work station on the first
floor, while E1 continued to work on the third floor of the agency's
facility. Significantly, the AJ observed that on July 24, 2006, the
day that complainant was advised that E1 had lodged a complaint of sexual
harassment against him, complainant told S1 about the incidents with E1
listed in his complaint. The AJ found that the agency's actions were
not motivated by discrimination and that complainant had not shown the
agency's actions to be a pretext to mask discrimination. Accordingly,
the AJ found that drawing all inferences in complainant's favor, the
undisputed facts showed that complainant had not established that the
agency had discriminated against complainant as alleged.
The agency subsequently issued a final order fully implementing the AJ's
finding of no discrimination.
On appeal, complainant states that S1 coerced another employee to file
a sexual harassment charge against him. Complainant also states that
he has been treated differently than another employee, also accused
of sexual harassment, who was White, and was not subjected to the same
treatment that he was.
ANALYSIS AND FINDINGS
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. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Finally, an AJ should not rule in favor of one party without holding
a hearing unless he or she ensures that the party opposing the ruling
is given (1) ample notice of the proposal to issue a decision without
a hearing, (2) a comprehensive statement of the allegedly undisputed
material facts, (3) the opportunity to respond to such a statement, and
(4) the chance to engage in discovery before responding, if necessary.
According to the Supreme Court, Rule 56 itself precludes summary
judgment "where the [party opposing summary judgment] has not had the
opportunity to discover information that is essential to his opposition."
Anderson, 477 U.S. at 250. In the hearing context, this means that the
administrative judge must enable the parties to engage in the amount
of discovery necessary to properly respond to any motion for a decision
without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an
administrative judge could order discovery, if necessary, after receiving
an opposition to a motion for a decision without a hearing).
In order to establish a prima facie case of sexual harassment, the
complainant must prove, by a preponderance of the evidence, the existence
of five elements: (1) that he is a member of a statutorily protected
class; (2) that he was subjected to unwelcome conduct related to his sex;
(3) that the harassment complained of was based on his sex; (4) that
the harassment had the purpose or effect of unreasonably interfering
with his work performance and/or creating an intimidating, hostile, or
offensive work environment; and (5) that there is a basis for imputing
liability to the employer. See Henson v. City of Dundee, 682 F.2d 897,
903 (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 on Harris v. Forklift Systems, Inc., EEOC Notice
No. 915.002 (March 8, 1994).
In the instant case, we find the AJ properly entered her decision without
a hearing, finding none of the material facts in dispute. Assuming the
incidents described in complainant's complaint occurred as he alleged,
we note that the agency separated E1 and complainant by reassigning
complainant on July 24, 2006, to a different floor from E1's duty station
as a result of E1's claim of sexual harassment made on July 10, 2006.
Complainant admitted he did not notify his supervisor, S1, of E1's
alleged inappropriate comments and actions until after complainant had
been told that E1 accused him of sexual harassment. We find that after
complainant raised his claims of sexual harassment the agency thereafter
took the steps necessary to ensure that no further incidents between
E1 and complainant occurred. We find no basis upon which to impute
liability to the agency for harassment.
Based on a thorough review of the record and the contentions on appeal,
we AFFIRM the agency's final order, finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
January 28, 2010
__________________
Date
2
0120080863
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120080863