0120090046
08-20-2009
Douglas Diggs, Complainant, v. Carlos M. Gutierrez, Secretary, Department of Commerce, Agency.
Douglas Diggs,
Complainant,
v.
Carlos M. Gutierrez,
Secretary,
Department of Commerce,
Agency.
Appeal No. 0120090046
Agency No. 085610
DECISION
On September 30, 2008, complainant filed an appeal from the agency's
August 29, 2008 final decision 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission AFFIRMS the agency's final
decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a probationary Materials Handler at the agency's Newington Warehouse
in Alexandria, Virginia. On December 5, 2007, complainant filed an
EEO complaint alleging that he was discriminated against on the bases
of his race (Black) and in reprisal for prior protected EEO activity
when he was subjected to a hostile work environment from November 27,
2006 to October 11, 2007, leading to his termination from the position
of Materials Handler on October 12, 2007. Complainant alleged that he
was subject to a hostile work environment based upon statements made by
a fellow co-worker (CW).
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b). The agency's decision concluded that complainant failed
to prove that he was subjected to discrimination as alleged.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (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").
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful. 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
[and the Rehabilitation Act] must be determined by looking at all 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, 510 U.S. 17
(1993).
To establish a claim of hostile environment harassment, complainant
must show that: (1) he belongs to a statutorily protected class; (2) he
was subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of
was based on his statutorily protected class; (4) the harassment affected
a term or condition of employment and/or had the purpose of effect of
unreasonably interfering with the work environment and/or creating an
intimidating, hostile, or offensive work environment; and (5) there is a
basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897
(11th Cir. 1982). The harasser's conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim's circumstances.
Enforcement Guidance at 6.
An employer is subject to vicarious liability for harassment when it
is "created by a supervisor with immediate (or successively higher)
authority over the employee." Burlington Industries, Inc., v. Ellerth,
524 U.S. 724, 118 S.Ct. 2257, 2270 (1998); Faragher v. City of Boca
Raton, 524 U.S. 775, 118 S.Ct. 2275, 2292-93 (1998). When, as in the
instant case, the harassment does not result in a tangible employment
action being taken against the employee, or when the alleged harasser
is not a supervisor, the employer may raise an affirmative defense
to liability. The agency can meet this defense, which is subject to
proof by a preponderance of the evidence, by demonstrating: (a) that it
exercised reasonable care to prevent and correct promptly any harassing
behavior; and (b) that appellant unreasonably failed to take advantage
of any preventive or corrective opportunities provided by the agency
or to avoid harm otherwise. Burlington Industries, Inc., v. Ellerth,
118 S.Ct. at 2270; Faragher v. City of Boca Raton, 118 S.Ct. at 2293;
Enforcement Guidance: Vicarious Liability for Unlawful Harassment by
Supervisors, EEOC Notice No. 915.002 (June 18, 1999).
Upon review of the record we find, assuming that the incidents alleged
occurred as stated by complainant, that management took proper action
in correcting the harassing behavior. In so finding, we note that
complainant alleges that he was subjected to unlawful harassment in the
form of derogatory racial comments. (Report of Investigation, Exhibit
F-2, pg. 1). We find, however, that once management was made aware of the
statements by CW, the matter was investigated, CW was disciplined, and CW
was relocated to another location. (ROI, ex. F-4, pg. 2). Accordingly,
we find that the agency exercised reasonable care to prevent and correct
promptly any harassing behavior.
With respect to complainant's termination, to prevail in a disparate
treatment claim such as this, complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a
prima facie case by demonstrating that he was subjected to an adverse
employment action under circumstances that would support an inference
of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567,
576 (1978). The prima facie inquiry may be dispensed with in this case,
however, since the agency has articulated legitimate and nondiscriminatory
reasons for its conduct. See United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department
of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997).
To ultimately prevail, complainant must prove, by a preponderance of the
evidence, that the agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000);
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981);
Holley v. Department of Veterans Affairs, EEOC Request No. 05950842
(November 13, 1997); Pavelka v. Department of the Navy, EEOC Request
No. 05950351 (December 14, 1995).
Assuming, arguendo, that complainant established a prima facie case of
race and reprisal discrimination, we find that the agency articulated a
legitimate non-discriminatory reason for its actions. The record reflects
that complainant committed several errors during his probationary period
and was counseled several times by his Front Line Supervisor (FLS).
The record further shows that despite these warnings, complainant
continued to commit similar errors. (ROI, ex. F-4, pg. 2). FLS stated
that she had never counseled a probationary employee as often as she
had to counsel complainant. Id. Complainant's Direct Supervisor (DS)
also provided affidavit testimony as to problems with complainant's job
performance. (ROI, ex. F-5, pg. 2). We find, therefore, that the agency
has articulated legitimate, non-discriminatory reasons for its actions.
Further, we find that complainant failed to proffer any evidence to show
that these reasons were merely pretext for unlawful 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
decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (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
August 20, 2009
Date
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0120090046
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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