0120091763
04-19-2011
Cornell Nash, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Cornell Nash,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120091763
Hearing No. 531-2008-00059X
Agency No. HQ-07-0267-SSA
DECISION
On March 17, 2009, Complainant filed an appeal from the Agency's February
24, 2009, 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., and Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission AFFIRMS the Agency's final
order finding no discrimination.
ISSUE PRESENTED
The issue presented in this case is whether Complainant was subjected to
a hostile work environment and discrimination based on his disability,
race, and sex, when: he was denied training; his work assignments were
reassigned to other employees; he was required to report to management
whenever he left the building, and his managers threatened to place him
on a performance improvement plan and terminate him.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
an Information Technology (IT) Specialist, GS-12, at the Agency's Earnings
Establishment Branch facility in Woodlawn, Maryland. On April 5, 2007,
Complainant filed an EEO complaint alleging that the Agency subjected
him to a hostile work environment and discriminated against him on the
bases of race (African-American), sex (male), and disability (diabetes,
hypertension, stress) when:
1. he was denied training, he was assigned projects and was expected to
complete the projects without assistance or formal training;
2. management removed and reassigned his work to others with no
explanation being provided for the removal and reassignment of his work;
and
3. he was required to report to management whenever he left the building;
and his manager threatened to place him on a performance improvement
plan and termination.
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.
Over the complainant's objections, the AJ assigned to the case granted
the Agency's April 14, 2008, motion for a decision without a hearing
and issued a decision without a hearing on February 6, 2009.1 The AJ
found that even assuming arguendo that Complainant established a prima
facie case of discrimination as to all bases, the evidence failed to
establish that he was discriminated against and subjected to a hostile
work environment as alleged. Specifically, the AJ found that Complainant
failed to show that the incidents were severe and/or pervasive enough
to establish a hostile work environment. The AJ determined that with
respect to issue (1) the evidence showed that Complainant received the
same amount of training as the other employees in the same position.
Further, the Agency showed that at least 15 employees provided assistance
to Complainant and there was only one instance where Complainant was told
not to seek assistance for his work because the team leader believed
Complainant was relying on another employee to complete his work and
the team leader wanted to determine whether Complainant was capable of
completing the assignment on his own. The AJ determined that this one
time instance did not amount to a hostile work environment.
With respect to issue (2), the AJ found that it was undisputed that some
assignments were removed from Complainant and reassigned to others.
The AJ found however, it was also undisputed that Complainant had
difficulty meeting time lines and conducting required testing and that
the assignments were taken away from him because he failed to complete
them in a timely manner. The AJ indicated that there was nothing
inappropriate about management reassigning work in order to ensure that
it is completed in a timely manner. The AJ found that there was no
evidence that Complainant was disciplined, counseled, or suffered any
harm as a result of the reassignment of some of his work.
Finally, with respect to issue (3) the AJ determined that having
Complainant report to management whenever he left the building did not
rise to the level of a hostile work environment because all employees were
required to do so. The AJ found that this was especially true because
Complainant was away from his work area more than other employees in the
Branch. Further, the AJ determined that while Complainant stated that
he had been threatened with being placed on a performance improvement
plan (PIP) and with termination, no such action was ever taken. The AJ
found that such statements without concrete action did not constitute
harassment.
Additionally, the AJ found that Complainant's allegations about other
acts or instances of harassment also did not rise, either singly or in
combination to the level of stating a claim of harassment. For instance,
Complainant mentioned that his supervisor sent all of his emails in red
font and commented to him that high blood pressure was a quiet disease
and diabetes was a silent killer, the AJ found that even if this was
true, it did not state a claim of harassment because the conduct was
not sufficiently severe or pervasive as to alter the conditions of
employment and create an abusive working environment. The AJ indicated
that none of the alleged instances of harassment, either separately or
taken together, rose to an actionable level of harassment. Therefore,
the AJ found that Complainant failed to show that he was discriminated
against as alleged. The Agency subsequently issued a final order adopting
the AJ's finding.
CONTENTIONS ON APPEAL
Complainant makes no contentions on appeal.
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the Agency's final order adopting them, de novo.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an
Agency's final action shall be based on a de novo review . . ."); see also
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614,
at Chapter 9, � VI.B. (November 9, 1999) (providing that an administrative
judge's "decision to issue a decision without a hearing pursuant to
[29 C.F.R. � 1614.109(g)] will be reviewed de novo"). This essentially
means that we should look at this case with fresh eyes. In other words,
we are free to accept (if accurate) or reject (if erroneous) the AJ's,
and Agency's, factual conclusions and legal analysis - including on the
ultimate fact of whether intentional discrimination occurred, and on the
legal issue of whether any federal employment discrimination statute
was violated. See id. at Chapter 9, � VI.A. (explaining that the de
novo standard of review "requires that the Commission examine the record
without regard to the factual and legal determinations of the previous
decision maker," and that EEOC "review the documents, statements, and
testimony of record, including any timely and relevant submissions of
the parties, and . . . issue its decision based on the Commission's own
assessment of the record and its interpretation of the law").
We must first 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. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally,
an AJ should not rule in favor of one party without holding a hearing
unless he or she ensures that the party opposing the ruling is given
(1) ample notice of the proposal to issue a decision without a hearing,
(2) a comprehensive statement of the allegedly undisputed material facts,
(3) the opportunity to respond to such a statement, and (4) the chance
to engage in discovery before responding, if necessary. According to
the Supreme Court, Rule 56 itself precludes summary judgment "where the
[party opposing summary judgment] has not had the opportunity to discover
information that is essential to his opposition." Anderson, 477 U.S. at
250. In the hearing context, this means that the administrative judge
must enable the parties to engage in the amount of discovery necessary
to properly respond to any motion for a decision without a hearing.
Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge
could order discovery, if necessary, after receiving an opposition
to a motion for a decision without a hearing). In the instant case,
the Commission finds that no material facts are at issue and that the
record was adequately developed, therefore a decision without a hearing
was appropriate.
ANALYSIS AND FINDINGS
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion
is unlawful, if it is sufficiently severe or pervasive. Wibstad
v. United States Postal Service, EEOC Appeal No. 01972699 (August 14,
1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997). It is also well-settled that harassment based on an
individual's prior EEO activity is actionable. Roberts v. Department of
Transportation, EEOC Appeal No. 05970727 (September 15, 2000). A single
incident or group of isolated incidents will generally 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. The harassers' conduct
should be evaluated from the objective viewpoint of a reasonable person
in the victim's circumstances. Harris v. Forklift Systems, Inc., 510
U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems,
Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6.
After a review of the record in its entirety, it is the decision of
the Equal Employment Opportunity Commission to affirm the Agency's
final order, because the AJ's issuance of a decision without a hearing
was appropriate and a preponderance of the record evidence does not
establish that discrimination occurred. Like the AJ, we find that even
if we assume arguendo that Complainant established a prima facie case
of discrimination as to all bases, the incidents complained of were not
severe or pervasive enough to establish a hostile work environment.
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
__4/19/11________________
Date
1 The AJ noted that Complainant's July 29, 2008 response consisted of
three sentences and indicated, among other things, that "it would be
unfair to grant the Agency's motion." Complainant also indicated that
both his representatives were ill and that he had no one to represent
him and that he wanted to tell his side of the story at a hearing.
The AJ noted, however, that Complainant submitted no further response to
the Agency's motion. As noted above, the AJ's decision was not issued
until February 6, 2009.
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0120091763
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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