0120123265
02-07-2013
Antonio Goodwin, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Antonio Goodwin,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120123265
Hearing No. 430-2012-00033X
Agency No. 2001-0544-2011104083
DECISION
On August 21, 2012, Complainant filed an appeal from the Agency's October 4, 2012, 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).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Electronic Technician at the Agency's Facility Management Service facility in Columbia, South Carolina.
On August 15, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Black), religion (Christian), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On April 11, 2011, the Supervisor denied Complainant's training request but then, on April 12, 2011, the request was granted after a co-worker (Co-worker1) was also approved to go to training.
2. Since April 15, 2011, and as recent as August 2011, Complainant was made to use headphones whenever he listened to Christian music and sermons.
3. Since May 2011, and as recent as October 12, 2011, Complainant was not assigned to work on any projects.
4. On May 26, 2011, Co-worker1 used a racial slur to describe Complainant.
5. On May 26, 2011, the Supervisor did not approve Complainant's request for leave until another employee submitted a leave request.
6. Around May/June 2011, the Supervisor failed to take action when Co-worker1 called Complainant a "yes man" and an asshole.
7. On June 24, 2011, another co-worker (Co-worker2) threw a pencil at Complainant.
8. Since June 21, 2011, and as recent as October 12, 2011, Complainant was isolated from the Supervisor and his co-workers.
9. On July 14, 2011, Co-worker1 sent an e-mail that stated Complainant lacks common sense and competence.
10. On July 19, 2011, the Supervisor issued Complainant a written counseling
11. On July 22, 2011, Co-worker2 threatened Complainant; called him derogatory names, and shouted racial comments toward him.
12. On July 28, 2011, Complainant felt threatened when Co-worker2 entered his personal space him.
13. On August 2, 2011, during a meeting with the EEO Manager L. T., Co-worker1 and the Supervisor also made derogatory comments about Complainant. Co-Worker2 also made racial and other derogatory comments about Complainant. The Supervisor stated that he was not going to respond to any of his e-mail.
At the conclusion of 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. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and issued a decision without a hearing on July 18, 2012. When the Agency failed to issue a final order within forty days of receipt of the AJ's decision, the AJ's decision finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged became the Agency's final action pursuant to 29 C.F.R. � 1614.109(i).1
ANALYSIS AND FINDINGS
Summary Judgment
We must 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate.
On appeal, Complainant indicated that he and the Agency did not receive the AJ's Notice of Intent to Issue a Decision Without a Hearing. Complainant argues that the AJ's decision should therefore be considered null and void because Complainant was not provided with the opportunity to provide to respond to the Notice. While Complainant argues that his lost opportunity to respond to the AJ should render his decision void, we disagree. The Commission acknowledges that the record shows that both parties had difficulties getting a copy of the Notice. Nonetheless, on appeal, Complainant has had the opportunity to provide evidence and arguments to establish that the AJ's decision to grant summary judgment, and issue a finding of no discrimination, was inappropriate. Despite this opportunity to make his arguments, Complainant and his representative failed to do so. As such, we can only rely on the record provided to the Commission to determine if summary judgment was appropriate.
We have reviewed the record. Upon our review, we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
Disparate Treatment
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she 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. McDonnell Douglas, 411 U.S. 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 actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant 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 Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In some of the incidents raised by Complainant in support of his claim of harassment, we note that he alleged that he was treated in a disparate manner. However, as with claims (1) and (5) regarding his requests for training and leave, we find that Complainant was provided with the requests. In claim (3), Complainant claimed that he was not assigned projects that have more substance to them. Complainant failed to show that his assignments had an impact on his performance appraisal or that he was otherwise negatively impacted by his assignments. As such, we determine that Complainant has not shown that he was subjected to discrimination with respect to claims (1), (3) and (5).
Religious Accommodation
Under Title VII, employers are required to accommodate the religious practices of their employees unless a requested accommodation is shown to impose an undue hardship. 42 U.S.C. �2000e(j); 29 C.F.R. � 1605.2(b)(1). The traditional framework for establishing a prima facie case of discrimination based on religious accommodation requires Complainant to demonstrate that: (1) he has a bona fide religious belief, the practice of which conflicted with his employment; (2) he informed the Agency of this belief and conflict; and (3) the Agency nevertheless enforced its requirement against Complainant. Heller v. EBB Auto Co., 8 F.3d 1433, 1438 (9th Cir. 1993); Turpen v. Missouri-Kansas-Texas R.R. Co., 736 F.2d 1022, 1026 (5th Cir. 1984).
Once Complainant establishes a prima facie case, the Agency must show that it made a good faith effort to reasonably accommodate Complainant's religious beliefs and, if such proof fails, the Agency must show that the alternative means of accommodation proffered by Complainant could not be granted without imposing an undue hardship on the Agency's operations. See Tiano v. Dillard Dep't Stores, Inc., 139 F.3d 679, 681 (9th Cir. 1998); Redmond v. GAF Corp., 574 F.2d 897, 902 (7th Cir. 1978); Cardona v. U.S. Postal Serv., EEOC Request No. 05890532 (Oct. 25, 1989). Pursuant to 29 C.F.R. � 1605.2(a)-(e), the Commission's "Guidelines on Discrimination Because of Religion," alternatives for accommodating an employee's religious practices include, but are not limited to, voluntary substitutes and swaps, flexible scheduling, and lateral transfers and job changes. Undue hardship does not become a defence until the employer claims it as a defence to its duty to accommodate. Ansonia Bd. of Ed. v. Philbrook, 479 U.S. 60, 68-69 (1986). To show undue hardship, an employer must demonstrate that an accommodation would require more than a de minimis cost. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 74 (1977).
Complainant alleged in claim (2) that he was not permitted to listen to his Christian music or sermons. Instead, the Agency asked that Complainant listen to these with headphones. The record indicated that Complainant would listen to music and sermons. Complainant asserted that he was told to turn it down because it interfered with his co-workers watching television in the break room. He claimed that others were permitted to listen to music without headphones. Although Complainant has asserted that the Agency did not allow him to listen to his Christian music and sermons, we find that the record does not support his claim. We note that the Agency did not stop him from listening to these items but merely asked that he do so with headphones. As such, we determine that Complainant has not shown that the Agency's action constituted discrimination.
Harassment
It is well-settled that harassment based on an individual's race, religion, and prior protected EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, Complainant must show that: (1) he belongs to the statutorily protected classes and/or engaged in prior EEO activity; (2) he was subjected to unwelcome conduct related to his membership in those classes and his prior EEO activity; (3) the harassment complained of was based on race, religion, and/or prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with his/her work performance 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). 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 Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994).
In claim (6), He also noted that during mediation that Co-worker1 called him an "asshole." We advise Complainant that settlement negotiations are to be treated as confidential and privileged in order to facilitate a candid interchange in order to settle disputes informally. As such, we cannot consider this incident. See Gomez v. U.S. Postal Serv., EEOC Appeal No. 0120080526 (Oct. 21, 2009) (finding Complainant's claim that he was tricked into participating in REDRESS and was displeased with the mediation outcome failed to state a claim of discrimination); Leonhardt v. Dep't of Army, EEOC Appeal No. 0120065185 (Dec. 7, 2007) (citing to Montague v. Dep't of the Army, EEOC Request No. 05920321 (May 7, 1992), in finding that statements made by agency officials and managers during mediation could not be grounds for a claim of discrimination). As such, we cannot consider this event as part of Complainant's claim of harassment.
Upon review of the record, we find that Complainant has not shown that the alleged incidents complained of were based on his race, religion, and/or prior EEO activity. Complainant believed that comments made to him constituted a "racial slur." Complainant indicated that the term "yes man" constituted a racial slur. In claims (11) and (13), he also indicated that during a facilitated meeting for employees within his office could speak their minds, Co-worker2 allegedly stated that Complainant had a "prison, jail, and thuggery mentality" and was not a "team player." Complainant was also described as "belligerent." The Supervisor also noted that he would no longer respond to Complainant's emails because he believed he could more effectively communicate without emails.
In addition, Complainant stated that Co-worker2 threw a pencil on Complainant's desk when he asked for materials. He then claimed that the Supervisor would isolate him by going out to lunch with Co-workers 1 and 2. However, they averred that the asked Complainant in the past to join them but it was Complainant who declined. In claim (9), Co-worker1 sent an email complaining of Complainant's lack of common sense. The record showed that on that day, Complainant was asked to cut the emergency pull cords so that they would be four to six inches off the floor. However, Complainant cut them so that they were 12 inches off the floor. Complainant was offended by the email telling of his error. Because of this error, Complainant was issued a written counselling which was raised in claim (10).
Upon review of the events, it is clear that Complainant and his co-workers had a difficult work environment. However, we find that Complainant has not established that the work environment was discriminatory or based on his race, religion and/or prior EEO activity. Therefore, we determine that the AJ properly concluded that Complainant failed to show that he was subjected to a hostile work environment in violation of Title VII.
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 implementing the AJ's decision.
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
February 7, 2013
__________________
Date
1 We note that the Agency did issue a final order on October 4, 2012, implementing the AJ's decision.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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