01986100
04-25-2001
Stanley H. Novak, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.
Stanley H. Novak v. Department of the Army
01986100
April 25, 2001
.
Stanley H. Novak,
Complainant,
v.
Gregory R. Dahlberg,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01986100
Agency No. 97-AR-0660-E
Hearing No. 160-98-8137X
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. and the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791 et seq.<1> Complainant alleged that he was discriminated
against on the bases of disability (reduced flexibility in right arm) and
reprisal (prior EEO activity), when: the agency improperly processed his
injury compensation claim; a supervisor made insensitive and harassing
remarks concerning his disability; and, thereafter, he was prevented
from eating in a certain area of the facility because he reported the
supervisor's remarks. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. For the reasons that follow, the Commission AFFIRMS the
agency's final decision.
At the time of the alleged discrimination, complainant was employed by the
agency as a machinist at the agency's Watervliet Arsenal in Watervliet,
New York. Believing that he was the victim of discrimination, complainant
sought EEO counseling and filed a formal EEO complaint, dated March 11,
1997. In his complaint, complainant claimed that he was discriminated
against as referenced above. The agency accepted the complaint for
investigation and complied with all of our procedural and regulatory
prerequisites. At the conclusion of the investigation, the agency issued
a Report of Investigation (ROI) and notified complainant of his right
to request an administrative hearing. Thereafter, complainant requested
a hearing before an EEOC Administrative Judge (AJ). Upon review of the
record, the AJ informed the parties of his intention to issue Findings
and Conclusions Without a Hearing. After consideration of the parties'
responses, the AJ concluded that a decision without a hearing still was
appropriate and issued a recommended decision finding no discrimination.
See 29 C.F.R. 1614.109(g)(2). Thereafter, the agency adopted the AJ's
decision as its FAD. It is from this agency decision that complainant
now appeals. On appeal, complainant asserts, among other things, that
summary judgment was not appropriate in the instant matter because there
existed factual issues concerning the extent to which complainant was
harassed by the agency.
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 does not sit
as a fact finder. Id. 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. A disputed issue
of fact is "genuine" if the evidence is such that a reasonable fact
finder could find in favor of the nonmoving 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 under Title VII, an AJ
may properly consider summary judgment only upon a determination that
the record has been adequately developed for summary disposition.
In the instant matter we find that the AJ's consideration was appropriate
and the record supports his conclusions. With respect to complainant's
injury compensation claim, the AJ concluded that the agency did not
discriminate against complainant when it refused to change his injury
compensation claim from an �occupational disease or illness� claim to a
�traumatic injury� claim. While the AJ assumed, for the purpose of the
decision, that complainant met the statutory definition of a qualified
individual with a disability, he determined that complainant failed
to rebut the agency's legitimate, nondiscriminatory explanation that,
at the time in question, there was not sufficient evidence to support
changing the claim.
The record also supports the AJ's findings concerning complainant's
claim that he was prevented from eating in a certain area and harassed
after he complained about an insensitive remark made by a supervisor.
In this regard, the AJ concluded that the remark complained of would not
have been actionable in itself. The AJ further concluded that complainant
was not subjected to less favorable treatment after he complained about
the supervisor because the Chief of the division told all employees that
they were required to take their breaks in their own areas and to stay
away from the area in question unless they had business there.
While it was certainly appropriate for complainant to report comments he
believed to be discriminatory, the record supports the AJ's conclusion
that complainant was not subjected to reprisal as a result thereof.
Moreover, the testimonial affidavits in the record support the AJ's
conclusions with respect to complainant's harassment claim and the
assertion of agency reprisal.
We note that the AJ's decision did not specifically address complainant's
contentions of further harassment, as expressed in complainant's
testimonial affidavit and in his appeal statement. Nevertheless, we
conclude that complainant was not subjected to a hostile work environment.
Complainant claims that the supervisor in question made further comments
to the effect that complainant was not working and that another supervisor
humiliated him by requiring him to sweep a floor using only his left,
uninjured arm. Assuming the conduct attributed to the agency occurred
as claimed by complainant, the actions, if anything, were isolated,
and not sufficiently severe and pervasive to support a discriminatory
hostile work environment claim. See Harris v. Forklift Systems, Inc.,
114 S.Ct. 367 (1993) (citing Meritor Savings Bank v. Vinson, 477 U.S. 57
(1986)); Frye v. Department of Labor, EEOC Request No. 05950152 (February
8, 1996). The conduct in question is evaluated from the standpoint
of a reasonable person, taking into account the particular context in
which it occurred. Highlander v. K.F.C. Management Co., 805 F.2d 644
(6th Cir. 1986). Unless the conduct is very severe, a single incident
or a group of isolated incidents will not be regarded as discriminatory
treatment. Walker v. Ford Motor Co., 684 F.2d 1355 (11th Cir. 1982).
After careful consideration of the entire record, including complainant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, the Commission finds that the AJ's RD
sets forth the relevant facts, and properly analyzes the appropriate
regulations, policies and laws. The Commission discerns that 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. Accordingly, the FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
April 25, 2001
__________________
Date
1The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.