0120101612
08-19-2010
Alfonso Ramirez, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Alfonso Ramirez,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120101612
Hearing No. 540200800138X
Agency No. 200P06782008104621
DECISION
On February 28, 2010, Complainant filed an appeal from the Agency's January 22, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
In his complaint dated November 6, 2008, Complainant alleged discrimination on the bases of national origin (Mexican), and reprisal for prior protected EEO activity when:
1. On April 20, 2008, and continuing, Complainant was denied the opportunity to perform the duties of lead eligibility clerk; and
2. On October 3, 2008, Complainant was chastised by his supervisor.
BACKGROUND
Upon completion of the investigation of the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On December 14, 2009, the AJ issued a decision without holding a hearing, finding no discrimination. The Agency's final action implemented the AJ's decision. The record indicates that at the time of events giving rise to this complaint, Complainant worked as an Environmental Agents Coordinator, GS-8 at the Agency's Southern Arizona VA Healthcare System in Tucson, Arizona in the Business Service line. Complainant's supervisor (RMO) is a Supervisor Medical Administrative Specialist, GS-9.
The record indicates that at the time of the events of this complaint there was no full time position for Lead Eligibility clerk position at the Southern Arizona Healthcare System, where Complainant worked nor has there ever been such a position. The record further indicates that during times when RMO was out of the office, she authorized another employee (EE), to sit at the desk in RMO's office in order to answer the phone, take messages and answer questions. EE is a GS-6 Patient Services Representative who had significantly more free time and flexibility in his position to take over these duties than did Complainant. According to the Agency there was no promotion potential attached to the performance of these duties in the absence of RMO. The record further discloses that on October 3, 2008, when RMO was out of the office, an unidentified individual unlocked RMO's door and Complainant worked at RMO's desk. Later that morning on October 3, 2008, RMO entered her office to find Complainant working there. Complainant alleges that RMO angrily chastised him for sitting at her desk and told him never to do it again.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ erred in finding that there were no genuine issues of material fact involved in his complaint and that his decision to issue a decision without holding a hearing was improper. In addition, Complainant alleges that the AJ's finding that Complainant failed to establish a prima facie case of discrimination was in error. Specifically, Complainant maintains that he was in fact similarly situated to his named comparator and treated less favorably. Complainant makes no new arguments on appeal in this matter that were not raised in his opposition to the Agency's Motion for Summary Judgment.
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, 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.
The Commission finds that grant of summary judgment was appropriate, as no genuine dispute of material fact exists. To prevail in a disparate treatment claim such as this, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the agency has articulated legitimate and nondiscriminatory reasons for its conduct. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail, complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
In this case, the AJ found that Complainant failed to establish a prima facie case of discrimination on any alleged basis. Specifically, the AJ determined that Complainant was not similarly situated to his named comparator with respect to claim 1. The AJ found that Complainant and EE are in two different positions, with different pay grades. The AJ found that Complainant failed to present any justification that the he and EE should be treated equally. Moreover, the AJ found that Complainant failed to demonstrate that the Agency's conduct with respect to claim 1 constituted an adverse action. Complainant contends in his complaint in this matter that his inability to perform the duties in RMO's absence negatively affected his upward mobility. However, other than his bare assertion, Complainant has presented no evidence to support his contention in that regard. Assuming arguendo, however, that the Complainant was able to establish a prima facie case of discrimination, the AJ found that the Agency established legitimate, non-discriminatory reasons for its actions. Specifically, the Agency indicated that during RMO's absence she assigned EE to perform administrative tasks only and that EE was never assigned to the position of "Acting Lead Eligibility Clerk." Additionally, RMO states that because EE was a GS-6 level Patient Services Representative, he had more flexibility to perform the administrative tasks she assigned than did Complainant.
Complainant also claimed that his position description, which was developed as a result of a prior settlement agreement with the Agency, prevented him from performing the duties RMO assigned to EE in RMO's absence. Complainant pointed to language in his position description indicating that the position he held "does not include lead clerk or supervisory responsibilities." The AJ found that Complainant failed to demonstrate that RMO's decision to assign tasks to EE in RMO's absence was in reprisal for Complainant's EEO activity with respect to a prior settlement agreement between the parties or that it was specifically related at all to the issues in the instant complaint.
In determining whether a harassment complaint states a claim in cases where a complainant had not alleged disparate treatment regarding a specific term, condition, or privilege of employment, the Commission has repeatedly examined whether a complainant's harassment claims, when considered together and assumed to be true, were sufficient to state a hostile or abusive work environment claim. See Estate of Routson v. National Aeronautics and Space Administration, EEOC Request No. 05970388 (February 26, 1999).
Consistent with the Commission's policy and practice of determining whether a complainant's harassment claims are sufficient to state a hostile or abusive work environment claim, the Commission has repeatedly found that claims of a few isolated incidents of alleged harassment usually are not sufficient to state a harassment claim. See Phillips v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Health and Human Services, EEOC Request No. 05940481 (February 16, 1995). Moreover, the Commission has repeatedly found that remarks or comments unaccompanied by a concrete agency action usually are not a direct and personal deprivation sufficient to render an individual aggrieved for the purposes of Title VII. See Backo v. United States Postal Service, EEOC Request No. 05960227 (June 10, 1996); Henry v. United States Postal Service, EEOC Request No.05940695 (February 9, 1995).
In determining whether an objectively hostile or abusive work environment existed, the trier of fact should consider whether a reasonable person in the complainant's circumstances would have found the alleged behavior to be hostile or abusive. Even if harassing conduct produces no tangible effects, such as psychological injury, a complainant may assert a Title VII cause of action if the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion, or national origin. Rideout v. Department of the Army, EEOC Appeal No. 01933866 (November 22, 1995)( citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993)) request for reconsideration denied EEOC Request No. 05970995 (May 20, 1999). Also, the trier of fact must consider all of the circumstances, including the following: 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, 510 U.S. at 23.
Upon review, the Commission finds that Complainant has failed to demonstrate that the alleged harassment as identified in claim 2 regarding RMO chastising Complainant for sitting at her desk without authorization on October 3, 2008, affected a term, or condition of Complainant's employment or had the purpose or effect of unreasonably interfering with the work environment or creating an intimidating, hostile or offensive work environment. See Humphrey v. United States Postal Service, EEOC Appeal No. 01965238 (October 16, 1998); 29 � 1604.11. Even assuming that the event cited by Complainant occurred as he described, there is no evidence to establish that RMO's actions were based on discriminatory animus toward Complainant's protected classes or in reprisal for Complainant's prior EEO activity. The AJ in this matter found that the event described in claim 2 was not sufficiently severe or pervasive to rise to the level of creating an unlawful hostile work environment. See Cobb v. Department of Treasury, EEOC Request No. 0597077 (March 13, 1997), citing Harris v. Forklift Systems Inc. 510 U.S. 17, 21 (1993) (harassment is actionable only if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment).
Because the Agency articulated legitimate, nondiscriminatory reasons for its actions, Complainant is required by law to show that the reasons are a pretext for discrimination. Having considered Complainant's assertions, the Commission finds that Complainant has not established pretext.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order, because the AJ's issuance of a decision without holding 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
August 19, 2010
__________________
Date
2
0120101612
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101612