01a51027
12-01-2005
Charles N. Wickliffe, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Charles N. Wickliffe v. Department of Veterans Affairs
01A51027
December 1, 2005
.
Charles N. Wickliffe,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A51027
Agency No. 200P2881; 200P0691-2002-100355
Hearing No. 340-2002-03702X
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. For the following reasons,
the Commission affirms the agency's final order.
ISSUE PRESENTED
Whether the Administrative Judge's decision to grant the agency summary
judgment was correct.
Background
The record reveals that complainant, a Recreation Therapist at the
agency's Greater Los Angeles Healthcare Service facility, filed formal
EEO complaints on May 16, 2001, and on November 21, 2001. He alleged
that the agency retaliated against him for his EEO activity when he was
subjected to harassment and a hostile work environment. Specifically,
he alleged that eight incidents occurred between 1997 and September 2001
which consisted of the following:
1) there was a change in the policy governing �use or lose� leave; 2)
complainant was temporarily reassigned to the Sepulveda Ambulatory Care
Center; 3) complainant was given a letter of counseling in April 2001
after an altercation with his supervisor (S); 4) complainant's second
level supervisor did not read a letter of appreciation for complainant's
work at an employees' meeting; 5) S required complainant to revise
a holiday funding request; 6) complainant was not given an option to
respond to a co-worker's accusation of fraud; 7) complainant was required
to check leave already approved; 8) complainant's co-workers were allowed
to leave a meeting during his presentation.
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.<1>
The AJ concluded that complainant failed to establish a prima facie case
of discrimination because the incidents alleged were not sufficiently
severe or pervasive such that they altered complainant's terms and
conditions of employment. She also concluded that even when viewing
the facts in the light most favorable to complainant, he failed to
demonstrate the agency's actions were taken in retaliation for his
protected activity. Specifically, complainant acknowledged that he did
not have a good working relationship with S and his second and third
level supervisors even before he filed an EEO complaint. Moreover, some
of the incidents in question occurred before he engaged in any protected
activity. An example of this was the policy related to the use of �use
or lose� leave during the holiday period which was in effect in 1997.
A decision was made to change the policy in 1997 before complainant's
first EEO activity occurred in March 2000.
Finally, the AJ found there was no genuine issue of material fact
that the agency had legitimate reasons for the actions that it took.
For instance, complainant did not dispute that he had an altercation
with S concerning the use of a popcorn machine before the decision was
made to temporarily detail him to another office. This altercation also
prompted the issuance of a letter of reprimand. Complainant also did
not dispute that he expressed he did not want to work with S anymore as
a result of the incident and that he did not want to have anymore �one
on one� interactions with S which led to his temporary reassignment.
Based on these conclusions, the AJ found that the record did not
establish by a preponderance of the evidence that discrimination occurred.
The agency's final order implemented the AJ's decision.
Complainant makes no new contentions on appeal, and the agency requests
that we affirm its final order.
ANALYSIS AND FINDINGS
We first set forth the law regarding harassment under Title VII and
the standard of review on appeal of an AJ's grant of summary judgment.
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). 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.
When considering granting summary judgment, the trier of fact must believe
the evidence of the non-moving party and all justifiable inferences must
be drawn in favor of the non-moving party. Id. at 255. 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. Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003).
Turning to the law as it relates to claims of harassment, harassment of
an employee that would not occur but for the employee's race, color, sex,
national origin, age, disability, religion or retaliation is unlawful,
if it is sufficiently patterned or pervasive. 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 of 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, Inc.,
510 U.S. 17, 23 (1993).
Harassment is actionable only if the incidents to which complainant
has been subjected were "sufficiently severe or pervasive to alter the
conditions of [complainant's] employment and create an abusive working
environment." Id; see also Oncale v. Sundowner Offshore Services, Inc.,
23 U.S. 75 (1998); Cobb v. Department of the Treasury, EEOC Request
No. 05970077 (March 13, 1997).
To establish a prima facie case of harassment, complainant must show that:
(1) he is a member of a statutorily protected class and/or was engaged in
prior EEO activity; (2) he was subjected to unwelcome verbal or physical
conduct related to his membership in that class and/or his prior EEO
activity; (3) the harassment complained of was based on his membership
in that class and/or his prior EEO activity; (4) 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) there is a basis for imputing liability to the employer.
See Roberts v. Department of Transportation, EEOC Appeal No. 01970727
(Sept. 15, 2000) (citing Henson v. City of Dundee, 682 F.2d 897 (11th
Cir. 1982)).
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as there are no genuine disputes
of material fact. We find that the AJ's decision was correct that
the incidents alleged, even when viewed in the light most favorable to
complainant, were not sufficiently severe or pervasive to create a hostile
work environment. Further, we conclude that even though the record was
adequately developed, the evidence did not sufficiently reflect that
the actions at issue were based on complainant's protected activity.
Therefore, there was no genuine dispute that the agency's actions were
based on legitimate reasons. Based on these conclusions, the Commission
finds that summary judgment was appropriate in this case.
For these reasons, we affirm the agency's final decision which fully
implemented the AJ's grant of summary judgment in favor of the agency.
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
December 1, 2005
__________________
Date
1 Complainant's appeal does not specifically
challenge the AJ's issuance of a sanction for complainant's failure to
timely file his pre-hearing statement, therefore, this decision will
not address the propriety of the AJ's order in this respect.