01A10027
04-11-2002
Donald H. Kirksey, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Donald H. Kirksey v. Department of the Army
01A10027
April 11, 2002
.
Donald H. Kirksey,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A10027
Agency No. ATL-98-AR-0549E
Hearing No. 130-AO-8118X
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 decision.
The record reveals that during the relevant period, complainant was
employed as a GS-11, Telecommunications Specialist at the agency's
81st Regional Support Command (RSC) facility in Birmingham, Alabama.
Complainant filed a formal EEO complaint on July 9, 1998, alleging
that the agency had discriminated against him on the bases of race
(African-American) and reprisal for prior EEO activity when he was denied
training opportunities and harassed numerous times with threatening
behavior.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). On March 1, 2000, the AJ issued an Acknowledgment and
Order which, among other things, instructed the parties to submit their
objections to the issuance of Findings and Conclusions without a hearing.
Complainant timely responded. On August 17, 2000, the AJ issued a
decision without a hearing, finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of race and reprisal discrimination. Specifically, the AJ found
that complainant failed to demonstrate that similarly situated employees
not in complainant's protected classes were treated more favorably under
similar circumstances. The AJ also noted that complainant did not show
any adverse employment action.
The AJ also concluded that complainant did not show that he was subjected
to a hostile working environment. In particular, the AJ noted that
although complainant worked in an unprofessional environment, that did
not rise to the level of being severe and/or pervasive enough to alter
the terms, conditions, or privileges of his employment.
The agency's FAD implemented the AJ's decision. On appeal, complainant
contends that the AJ erred when he failed to credit the testimony
or evidence provided regarding a hostile working environment.
Complainant also contends that while, complainant's supervisor (S1)
exhibited inappropriate behavior towards all of his staff, the pattern
of his hostile behavior was more intense with respect to complainant.
The agency requests that we affirm its final decision.
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.
Race and Reprisal Claims
Although the initial inquiry of discrimination in a discrimination case
usually focuses on whether the complainant has established a prima facie
case, following this order of analysis is unnecessary when the agency
has articulated a legitimate, nondiscriminatory reason for its actions.
See Washington v. Department of the Navy, EEOC Petition No. 03900056 (May
31, 1990). In such cases, the inquiry shifts from whether the complainant
has established a prima facie case to whether s/he has demonstrated by
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
In the instant case, the Commission finds that the agency articulated
legitimate, nondiscriminatory reasons for not permitting complainant to
attend the technical training classes that he requested. Specifically,
the agency stated that it permitted all of the contractors to receive
technical training because their positions required it. In contrast,
complainant's civilian position did not require the technical training.
The agency also stated that management did not want persons in the field
trained as network administrators since there were contract employees
available to do the work.
Complainant did not show that these reasons proffered by the agency
were a pretext for discriminatory animus and/or retaliatory motive.
The Commission also notes that none of the comparative employees were
similarly situated to complainant. The majority of the persons that
attended the training were contract employees and are not similarly
situated to complainant who, in addition to his status as a federal
employee, was a military reservist. In addition, the other comparative
employee is a Black female and thus, a member of complainant's protected
class. The last comparative employee, a White male, is a full-time
member of the military and not a civilian.
Hostile Working Environment Claim
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 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).
The Commission finds that complainant has not established that the
challenged conduct was �sufficiently severe and pervasive to alter the
conditions of his employment and create an abusive working environment.�
Harris, 510 U.S. at 21. Specifically, we find that to the extent the
incidents cited by complainant occurred, they are more accurately viewed
as incidents involving a supervisor (S1) that was disliked by the entire
Telecommunications Division, rather than pervasive, ongoing harassment
directed towards complainant's race. The record also shows that S1 had
a reputation for being less than tactful when dealing with subordinates.
Furthermore, the Commission finds that these incidents do not rise to
the level of creating a hostile working environment.
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. We find that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. Further, construing the evidence to be most favorable to
complainant, we note that complainant failed to present evidence that
any of the agency's actions were motivated by discriminatory animus
toward complainant's protected classes.
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
April 11, 2002
__________________
Date