0120103739
02-04-2011
Curtis E. Kennedy, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Army & Air Force Exchange Service), Agency.
Curtis E. Kennedy,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Army & Air Force Exchange Service),
Agency.
Appeal No. 0120103739
Hearing No. 510201000225X
Agency No. AAFES09081
DECISION
On September 17, 2010, Complainant filed an appeal from the Agency's
August 18, 2010, final order concerning his equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 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
On July 13, 2009, Complainant filed an EEO complaint alleging that
the Agency discriminated against him on the basis of disability
(hearing impairment) when, on June 12, 2009, he was forced to resign
(constructively discharged).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Sales Associate in the furniture department at the Agency's MacDill
Air Force Base facility in Tampa, Florida. 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. When the Complainant did not object, the AJ assigned to the
case granted the Agency's June 21, 2010, motion for a decision without
a hearing and issued a decision without a hearing on August 3, 2010.
The Agency subsequently issued a final order adopting the AJ's finding
that Complainant failed to prove that the Agency subjected him to
discrimination as alleged.
The record indicates that Complainant began his employment with the
Agency on April 14, 2009 and resigned approximately six weeks later on
June 2, 2009. In his complaint in this matter, Complainant alleges that
he was forced to resign because his supervisor told him that he could
resign if he felt he could not do the job. Complainant further alleges
that another supervisor told him that he could be terminated if he did not
carry his load. Complainant argues that he was never properly trained to
perform his job. Specifically, Complainant contends that based on his
disability, he was not trained on the use of cash registers, computers
or the bathroom.
According to the record, Complainant was counseled after a female employee
opened the bathroom door with a key while Complainant was still in the
bathroom. Complainant states that he heard a knock and responded that
he was busy. Complainant acknowledges that the female employee may not
have heard him; however, Complainant claims that the Agency assumed that
the incident was his fault. The record does not demonstrate, nor does
Complainant allege that he received any discipline as a result of this
incident. Regarding Complainant's allegation that he was not trained on
the use of the cash registers and the computers, the Agency indicates that
Complainant was assigned a buddy who was responsible for training him.
According to Complainant's supervisor, when Complainant advised that
the buddy assigned to train him was not teaching Complainant anything,
Complainant's supervisor assigned three different individuals to train
Complainant on every aspect of the job. According to the record, when
asked why he had not said anything sooner about the training he was
receiving, Complainant responded that he did not want to cause problems.
The Agency further indicates that in addition to the three individuals
assigned to work with Complainant, Complainant's supervisor had weekly
meetings with Complainant to see how he was progressing. According to
Complainant's supervisor, shortly after the weekly meetings began,
Complainant brought in a note from his physician indicating that
Complainant was retiring because he had heel spurs.
CONTENTIONS ON APPEAL
Complainant fails to offer any arguments on appeal regarding the Agency's
finding of no discrimination in this matter.
ANALYSIS AND FINDINGS
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 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.
Applying these principles to the instant case, we find that Complainant
has failed to identify any genuine issues of material facts that would
require resolution through a hearing. Therefore, the AJ correctly
determined that this case was appropriate for adjudication without a
hearing pursuant to 29 C.F.R. � 1614.109(g).
Harassment
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 wellsettled 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. 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. The harassers' conduct should be
evaluated from the objective viewpoint of a reasonable person in the
victim's circumstances. Enforcement Guidance on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
In the instant case, we find that the record does not support a finding
that Complainant was subjected to any Agency action that rose to the
level of a hostile work environment.
Forced Retirement
Complainant alleges that the Agency's alleged discriminatory actions
forced him to retire; namely that he did not receive proper training. A
fair reading of the record reveals that Complainant is alleging a
constructive discharge claim. With regards to forced retirement,
constructive discharge occurs when an employer deliberately renders
an employee's working conditions so intolerable that the individual is
forced to retire from his position. Constructive discharge only occurs
when the Agency's actions were taken with the intention of forcing the
employee to retire. The Commission has established three elements which
Complainant must prove to substantiate a claim of constructive discharge:
1) a reasonable person in Complainant's position would have found the
working conditions intolerable; 2) the conduct causing the intolerable
working conditions is an EEO violation; and 3) Complainant's resignation
was caused by the intolerable working conditions. See Taylor v. Army
and Air Force Exchange Service, EEOC Request No. 05900630 (July 20,
1990); see also Perricone v. United States Postal Service, EEOC Request
No. 05900135 (June 11, 1990).
As discussed above, the Agency's conduct did not amount to unlawful
employment discrimination. We discern nothing in the present record
support a finding that Complainant has established that his alleged
forced retirement constituted a constructive discharge.
Upon review, the Commission finds that Complainant has not shown
that the Agency engaged in discrimination that became so intolerable
that he had no choice but to resign. Therefore, Complainant failed to
establish that his resignation amounted to a constructive discharge
based on discriminatory animus. Specifically, the Commission points
out that in a letter dated June 2, 2009, Complainant resigned from the
Agency indicating that he had developed heel spurs which put a strain on
his back. Complainant has failed to establish that the he suffered any
adverse action at the hands of the Agency with respect to his hearing
impairment. We find that Complainant failed to establish pretext and
that the AJ's findings that no discrimination occurred are supported
by substantial evidence. Furthermore, we find that Complainant failed
to meet his burden of proof to prove by a preponderance of the evidence
that any Agency action was motivated by discrimination.
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 finding no discrimination.
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 4, 2011
__________________
Date
2
0120103739
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120103739