Michael L. Edwards, Complainant,v.Paul A. Quander, Jr., Director, Court Services and Offender Supervision Agency Agency.

Equal Employment Opportunity CommissionJun 24, 2004
01a42724 (E.E.O.C. Jun. 24, 2004)

01a42724

06-24-2004

Michael L. Edwards, Complainant, v. Paul A. Quander, Jr., Director, Court Services and Offender Supervision Agency Agency.


Michael L. Edwards v. Court Services and Offender Supervision Agency

01A42724

6/24/2004

.

Michael L. Edwards,

Complainant,

v.

Paul A. Quander, Jr.,

Director,

Court Services and Offender Supervision Agency

Agency.

Appeal No. 01A42724

Agency No. 02-01

Hearing No. 100-A3-7270X

DECISION

Complainant timely initiated an appeal from the agency's final order

concerning his equal employment opportunity (EEO) complaint of unlawful

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 appeal is accepted pursuant to 29 C.F.R. � 1614.405.

Complainant, a Management Analyst at the agency's Washington, DC

facility, filed a formal EEO complaint on October 4, 2001, alleging

that the agency discriminated against him on the bases of sex (male)

and in reprisal for prior EEO activity<1> when:

(1) he was subjected to hostile work environment harassment and placed

on administrative leave on July 12, 2001, and

he was terminated on August 3, 2001.

At the conclusion of the investigation, complainant received a copy

of the investigative report and requested a hearing before an EEOC

Administrative Judge (AJ). The AJ issued a decision without a hearing,

finding no discrimination.

The agency's final order dated March 17, 2004, implemented the AJ's

decision.

On appeal, complainant states that the AJ's finding of no discrimination

was improper. Specifically, complainant states that he �established

a prima facie case of harassment based on sex� and that the �material

facts show that the [a]gency did unlawfully terminate [him].�

The agency requests that we affirm its final order.

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, 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.

Claim (1)-Hostile Work Environment<2>

Regarding claim (1), the AJ stated that while complainant in his response

to the agency's motion for summary judgment cited twelve incidents in

support of his harassment claim, �few, if any of these incidents can be

characterized as derogatory and/or discriminatory comments pertaining

to complainant's sex.� The AJ concluded that these comments were not

severe or pervasive enough to constitute a hostile work environment.

Some of the comments complainant alleged that his supervisor made were:

�earth to [complainant], are you there?�; �Can't you read?�; and �I'm

calling you because you are the only on[e] who makes as much as I do?�

Harassment of an employee that would not occur but for the employee's

race, color, sex, national origin, age, disability, or religion 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

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 alleged that he was subjected to a hostile work environment.

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. United States Postal Service, EEOC Appeal

No. 01965238 (October 16, 1998); 29 C.F.R. �1604.11.

The Commission determines that complainant has not presented evidence

to support his hostile work environment claim. Specifically, the

Commission finds that the alleged acts were not severe or pervasive

enough to constitute harassment. See Harris, 510 U.S. at 17, 21-22.

Claim 2-Complainant's Placement on Administrative Leave and Termination

Regarding claim (2), the AJ stated that the agency articulated

legitimate, nondiscriminatory reasons for its actions. Specifically,

the AJ stated that the record contained �numerous examples of performance

and conduct problems experienced by [c]omplainant.� The AJ concluded

that complainant failed to present sufficient evidence to indicate that

the agency's articulated reasons are pretext. Moreover, the AJ further

concluded that the agency properly dismissed complainant's claim that

he was retaliated against for failure to falsify an audit.

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 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.

Id. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).

The burden then shifts to the agency to articulate a legitimate,

nondiscriminatory reason for its action. Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met

its burden, the petitioner bears the ultimate responsibility to persuade

the fact finder by a preponderance of the evidence that the agency acted

on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks,

509 U.S. 502 (1993).

Although the initial inquiry in a discrimination case usually focuses

on whether the complainant has established a prima facie case, following

this order of analysis is unnecessary when the agency has articulated a

legitimate, nondiscriminatory reason for its actions. See Washington

v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

In such cases, the inquiry shifts from whether the complainant has

established a prima facie case to whether he has demonstrated by a

preponderance of the evidence that the agency's reasons for its actions

merely were a pretext for discrimination. Id.; see also United States

Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).

The record supports the AJ's determination that the agency articulated

legitimate, nondiscriminatory reasons for its actions. Specifically,

the record contains a copy of a memorandum to complainant from his second

level supervisor (S2) dated July 20, 2001. Therein,

S2 sets forth numerous examples of complainant's �rude, disrespectful,

disruptive, and insubordinate behavior.� In addition, the record contains

a counseling memorandum issued in March 2001 from complainant's supervisor

(S1). Therein, S1 states that complainant missed three deadlines in

February 2001 pertaining to a manual he was drafting and that there

were approximately eighty-seven errors in his fifth draft of the manual.

The Commission finds that complainant has failed to present sufficient

evidence that the agency's articulated legitimate, nondiscriminatory

reasons for its actions were pretext.

Moreover, the Commission determines that the agency properly dismissed

complainant's claim that he was retaliated against for failure to falsify

an audit. Retaliation for failure to falsify an audit is not a protected

basis within the purview of the Commission's regulations.

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. Further, construing the evidence to be most favorable to

complainant, we note that complainant failed to present evidence that

any of the agency's actions were motivated by discriminatory animus

toward complainant's protected classes.

Accordingly, the agency's final order implementing the AJ's decision is

hereby 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

6/24/2004

Date

1In his formal complaint, complainant also claimed that he was retaliated

against for resisting instructions to falsify an audit. The agency

dismissed this claim in an acceptance/partial dismissal letter dated

January 29, 2002, stating that this was not a protected basis within

the purview of the Commission's regulations.

2In the AJ's decision dated March 8, 2004, the AJ noted that while

complainant's placement on administrative leave was part of claim (1),

�this action was a precursor to his subsequent termination� and therefore,

the AJ considered it within the context of claim (2).