0120081599
12-23-2008
Dennis S. Murray, Sr., Complainant, v. Ed Schafer, Secretary, Department of Agriculture, Agency.
Dennis S. Murray, Sr.,
Complainant,
v.
Ed Schafer,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120081599
Agency No. 004106
Hearing No. 100-2006-00074X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's December 4, 2006 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.
During the period at issue, complainant was employed as a Public Affairs
Specialist, GS-035-11, at the agency's Grain Inspection, Packers and
Stockyards Administration (GIPSA) in Washington, D.C.
On July 15, 2003, complainant initiated EEO Counselor contact. Informal
efforts to resolve his concerns were unsuccessful. Subsequently,
complainant filed the instant formal complaint on December 3, 2003.
Therein, complainant alleged that he was subjected to harassment and a
hostile work environment on the basis of race (African-American), color
(Black) and in reprisal for prior EEO activity when:
(1) since November 2002, his supervisors withheld information regarding
his assignment (i.e., articles for the GIPSA newsletter);
(2) on November 7, 2002, he was questioned regarding his work schedule
and lunch time;
(3) on May 29, 2003, management denied his request to attend a Packers
and Stockyards Administration (P&SA) event regarding small farmers,
held in Oklahoma; and
(4) in July 2003, his supervisor denied reimbursement of expenses he
incurred for a rental car while attending a Hispanic Emphasis Program
Managers conference held in June 2003.
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 agency thereafter filed Motion to Dismiss
for Untimeliness and Matters Not Raised with an EEO Counselor and/or
Motion for Summary Judgment.
In its motion, the agency requested that the AJ to dismiss complainant's
complaint on the grounds of untimely EEO Counselor contact pursuant
to 29 C.F.R. � 1614.107(a)(2) or issue a decision without a hearing in
its favor. The agency noted that while complainant withdrew claim (4)
during his deposition, the alleged discriminatory events occurred from
November 2000 through April 2002 but that complainant did not contact
an EEO Counselor until July 15, 2003, which was beyond the forty-five
(45) day limitation period. The agency argued that complainant was,
or should have been aware of the time limit.
The agency noted that complainant raised new claims during the
investigation. Specifically, complainant requested to have his complaint
amended to include the following claims that he was discriminated against
when between April and June 2001, he was slated for a transfer but was
told that all transfers were put on hold; on May 22, 2001, a proposal he
wrote on disadvantaged small farmers and ranchers was delivered to his
supervisors while he was out of the office but upon his return to the
office, no one mentioned or commented on the proposal; on June 10, 2001,
his supervisor had yet to address his problems about the press releases
and other matters; on October 2, 2003, his supervisor denied him the
opportunity to attend the San Diego Risk Management Conference because of
budgetary constraints; and sometime in 2003, he was denied the opportunity
to attend the Farm Bill Briefing Working Group. The agency argued that
the AJ should dismiss these additional claims because complainant failed
to raise these claims with an EEO Counselor and that they were not like
or related to a matter for which complainant underwent EEO counseling.
The agency further stated that, assuming arguendo complainant's claims
were timely raised, complainant did not establish a prima facie case
of disparate treatment and harassment based on race and reprisal.
The agency also stated that, assuming arguendo complainant established
a prima facie case, management articulated legitimate, nondiscriminatory
reasons for its actions which complainant failed to show were a pretext.
On September 29, 2003, the AJ granted the agency's motion for a decision
without a hearing. In her decision, the AJ determined that the agency
correctly argued that claims (1) - (3) should be dismissed for untimely
EEO Counselor contact and that complainant withdrew claim (4) during
his deposition. The AJ further determined that the agency correctly
argued that all the additional incidents complainant raised for the
first time during the investigation should be dismissed because he
failed to raise them with an EEO Counselor. The AJ determined that
assuming arguendo complainant did not withdraw claim (4), summary
judgment in favor of the agency was appropriate. Specifically, the AJ
found that complainant did not establish a prima facie case of race,
color, and reprisal discrimination. The AJ nevertheless found that the
agency articulated legitimate, nondiscriminatory reasons for its action
which complainant failed to show were a pretext for discrimination.
Regarding the harassment claim, the AJ found that complainant failed to
prove he was subjected to harassment sufficiently severe or pervasive
so as to render his work environment hostile.
The agency issued a final order dated December 4, 2006, wherein it
implementing the AJ's decision finding no discrimination. This appeal
followed.
Regarding claim 1, the record reflects that complainant's supervisor
(S1) denied harassing complainant. In his affidavit, S1 stated that he
did not deliberately withhold information of meetings and chances for
press and media releases. With respect to complainant's allegation that
during an initial meeting S1 stated to complainant that he had heard that
complainant did not complete his work assignments, S1 stated that he does
not "recall a statement to that effect, nor do I recall specifics of an
initial meeting." With respect to complainant's allegation that in March
2001, S1 showed him two press release changes and stated that he wanted
complainant to continue his work his (S1's) way, S1 stated that he does
not recall the incident but that complainant "and I worked through several
changes in format for the Agency's press releases over a period of time."
S1 further stated that complainant's written work "did require a lot of
re-writing because of poor grammar, sentence structure, etc."
With respect to complainant's allegation that in July 2001, S1
contacted his instructor at a local university concerning his progress
and requested the instructor to provide him with some of complainant's
assignments, which the instructor told him it was against school policy,
S1 acknowledged contacting the instructor to determine complainant's
progress. S1 denied telling the instructor that the agency would stop
payment for complainant's class after being told that he would not be
able to get a copy of complainant's assignments.
With respect to complainant's allegation that S1 discontinued his
subscription to a North Carolina newspaper, S1 stated, "At the request
of my supervisor I requested that Complainant discontinue delivery of
a personal newspaper to office address."
Complainant's other supervisor (S2) stated that complainant "has never
told me that he believes I harassed him about his work, and complainant
[sic] has never spoken to me regarding his allegations about [S1]."
Specifically, S2 stated that S1 was "continually frustrated with the
quality of the press releases completed by complainant. Press releases
drafted by Complainant contained factual errors, spelling errors,
and grammar errors." S2 further stated that it was to her knowledge
that complainant failed to submit a single press release that was
appropriate for release "without substantial revision." S2 stated that
because P&SP wanted complainant to succeed, S1 "provided a substantial
amount of counseling, gave complainant additional time to complete
assignments that his grade warranted, and provided training to improve his
technical skills." S2 stated that she was aware that complainant wanted
his name listed on documents he prepared for public release but "his
responsibilities did not include talking to the external public regarding
published documents except on specific outreach events." S2 stated that
she and S1 explained this policy to complainant "on multiple occasions,
but complainant was dissatisfied with our explanation and reason."
Further, S2 stated that she questioned the absence of complainant's
articles in the GIPSA newsletter, and that S1 "repeatedly told me that
complainant submitted those articles whose quality and/or subject matter
precluded submission to the editor for publication." S2 stated that S1
also informed her that he was working with complainant to improve both the
quality and article topic selection, and that he "hoped that complainant
would have articles in the GIPSA newsletter in the future. Action taken:
[S1] and I continued to have strategy sessions on this topic, and [S1]
continued to counsel complainant." S2 stated that S1 gave complainant
additional time to complete assignments and provided training to improve
his technical skills, including a full semester writing course at a local
university. S2 stated that she was aware that S1 contacted complainant's
instructor to obtain information concerning his assignments and progress.
S2 stated that S1 "made this contact after complainant failed to provide
this information to [S1] as complainant agreed to do when [S1] offered
the training to him. The training was offered and paid by P&SP to help
complainant improve his performance.... Complainant, however, failed
to comply with the terms of the agreement." S2 stated "I believe I may
have instructed [S1] to contact the University after Complainant failed
to comply with the agreement he reached with [S1]."
With respect to complainant's allegation that S1 discontinued his
subscription to a North Carolina newspaper, S2 stated that she directed
S1 to discontinue complainant's subscription because the newspaper's
primary focus "is on African American issues and is therefore outside the
scope of complainant's job responsibilities." Specifically, S2 stated
that complainant was responsible "for identifying issues related to
the administration and enforcement of the Packers and Stockyards Act,
a statute that regulates meat packers, dealers, market agencies, and
stockyards and swine contractors in the red meat industries, and live
poultry dealers."
With respect to complainant's allegation that his work station was moved
several times, S2 stated that complainant's work station was moved three
times. S2 stated that the first move was to resolve complainant's EEO
complaint against an identified female co-worker. S2 further stated
that complainant's second move occurred because he was involved in
an altercation with a different female co-worker (C1) with whom he
shared an office. Specifically, S2 stated that after complainant and C1
"became engaged in a series of escalating arguments, I made the decision
to move complainant out of the office to avoid further disruption and
the potential filing of a harassment complaint by [C1] who alleged she
felt threatened by complainant." S3 stated that complainant's third
move was dictated by the scheduled rehabilitation of the South Building.
Furthermore, S3 stated that none of these moves were initiated by S1.
Regarding claim 2, S1 stated that lunch breaks in the P&SP were 30
minutes for all of his employees, including complainant. S2 stated that
the regulations under which P&SP operates "specify a 30 minute lunch
break for its employees, including those assigned to [S1]. There are
no specific breaks."
Regarding claim 3, S1 stated that some of complainant's training
requests were approved, "some denied. Reasons for denial - budgetary -
appropriateness of training." S1 acknowledged denying complainant's
request to attend the P&SP event in Oklahoma scheduled for June 2003
because "other GIPSA attended [that] event." S1 stated, however,
that complainant's request to attend the United Latin American Citizen
Conference in Orlando, Florida was approved. S2 stated that complainant's
request to attend the Oklahoma event in June 2003 was denied "because
other GIPSA employees attended who were physically located closer to
the event."
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 the agency articulated legitimate,
nondiscriminatory reasons for its actions. Complainant has not
established that the agency's reasons were a pretext for discrimination.
Regarding complainant's harassment claim, we find that the incidents of
harassment identified by complainant were neither sufficiently pervasive
nor severe to create a hostile work environment. We discern no basis
to disturb the AJ's decision.
Accordingly, the agency's final order implementing the AJ's finding of
no discrimination concerning claims (1) - (3) is AFFIRMED.1
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z1008)
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
December 23, 2008
Date
1 Because we affirm the AJ's finding of no discrimination concerning
claims (1) - (3) for the reasons stated herein, we find it unnecessary
to address the alternative grounds for disposition (i.e., untimely EEO
Counselor contact).
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2
0120081599
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
7
0120081599