0120091555
08-21-2009
Eric B. Fort, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Eric B. Fort,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120091555
Agency No. DAL-07-0140
Hearing No. 450-2008-00189X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's February 11, 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.
Complainant, a former Management Support Specialist, GS-12,1 alleged
that the agency discriminated against him on the bases of race
(African-American), sex (male), and in reprisal for prior EEO activity
when:
1. on October 24, 2006, he was singled out when his performance
appraisal was conducted by an evaluation panel that consisted of the
office management staff and his colleagues. During the appraisal, the
District Manager (DM) allegedly behaved in an unprofessional manner by
making disparaging remarks about him;
2. he was subjected to harassment and a hostile work environment
due to management's attitude and unprofessional behavior toward him.
He alleged he was ridiculed in front of the office staff and in public
work settings; his requests for medical leave were met with opposition;
and he was overlooked for promotions. He also alleged he was subjected
to work performance meetings after talking with the EEO Counselor; and
3. he was the only member of the Area V team who had been restricted to
full time receptionist duties which did not allow him to perform the full
range of duties in his job description. On May 2, 2007, the DM allegedly
inequitably distributed the mail duties so that complainant was made
solely responsible for the morning outgoing mail Monday through Friday.
His expressed dissatisfaction to the DM and the Assistant DM regarding
his work assignments remained unresolved.2
Following the investigation into his complaint, complainant requested a
hearing before an EEOC Administrative Judge (AJ). On January 12, 2009,
the AJ issued a decision dismissing the instant complaint pursuant to
29 C.F.R. � 1614.107(a)(1) for failure to state a claim, finding that
complainant failed to describe an adverse action taken against him that
affected a term, condition or privilege of his employment.
Regarding claim 1, the AJ determined that the complainant's assertions
that the agency conducted an illegal performance evaluation did not occur.
The AJ noted that the record reflects that complainant secretly recorded
the October 24, 2006 meeting in which he complained and those recordings
undermined his entire representations about what occurred in the meeting
and support his position. Specifically, the AJ stated that he sent an
email to complainant advising him that if the agency officials referred
to and identified particular portions of the recordings then he was to
respond with specificity. The AJ further stated that complainant "did
refer to the recordings by when on the tape the reference was to have
occurred; and, Complainant totally failed to dispute the evidence provided
in his own secretly recorded 'evidence.' (There would have been some
dispute as to whether or not the recordings would have been admitted if a
hearing had been held, nonetheless, the recorded evidence was considered
for the purpose of Respondent's motion and this order.)." The AJ noted
that a review of the agency's response showed that complainant was not
abused in that meeting and that his performance evaluation was not given
before a "panel" as complainant alleged.
Regarding claim 2, the AJ determined that complainant failed to support
his claims of such public admonishments with so much as a reference
to any other person before whom such occurrences were supposed to have
occurred.
Regarding claim 3, the AJ noted that since complainant came to work early
and then left before he could assist with mail duties in the afternoon,
he was assigned to handle those mail duties which occurred early in
the day. The AJ determined that complainant again failed to show that
he was made the full-time receptionist or the duties he was assigned to
were not appropriate to his position. The AJ determined that during the
relevant time, complainant was in a management support position and had
no supervisory responsibilities.
The agency issued a final order dated February 11, 2009, implementing
the AJ's dismissal decision. The instant appeal followed.
In the instant case, we disagree with the AJ's determination to
procedurally dismiss complainant's complaint, pursuant to 29 C.F.R. �
1614.107(a)(1), for failure to state a claim. A fair reading of the
record reveals that complainant has alleged that he was subjected to an
ongoing discriminatory and retaliatory hostile work environment when
his performance appraisal was conducted by an evaluation panel that
consisted of the office management staff and his colleagues; DM made
disparaging remarks about him; he was ridiculed in front of the office
staff and in public work settings; his requests for medical leave were
met with opposition; he was overlooked for promotions; he was subjected
to work performance meetings after talking with the EEO Counselor; and
he was the only member of the Area V team who was restricted to full
time receptionist duties which did not allow him to perform the full
range of duties in his job description.
We note that the AJ based his conclusions about whether or not complainant
stated a justiciable claim under Title VII. by weighing the evidence
produced during the agency's investigation of the complaint and by
addressing the merits of the case brought forward by complainant.
This type of determination is more appropriate for a decision following a
hearing or a decision issued by summary judgment pursuant to the standards
prescribed by 29 C.F.R. � 1614.109(g), rather than a procedural dismissal
pursuant to 29 C.F.R. � 1614.107(a)(1). The agency represents, in its
response to this appeal, that complainant indicated he did not object
to the agency's motion to the AJ for a decision by summary judgment.
However, the AJ did not decide the case by summary judgment, but rather
dismissed it on a procedural basis.
The Commission's regulations allow an AJ to issue a decision on the merits
of a claim 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. However, in the instant case, because the AJ did
not make a decision by summary judgment, but rather issued a procedural
dismissal, he did not apply any of these standards and we cannot view
his decision as a summary judgment on the merits of complainant's claim.
When examining the AJ's decision purely as a procedural dismissal pursuant
to 29 C.F.R. � 1614.107(a)(1), we find that complainant has clearly
alleged that he was subjected to ongoing harassment which resulted in a
hostile work environment on the bases of race, sex and prior protected
activity. We note that the events identified occurred over a lengthy
period and were all allegedly committed by the same management officials.
Thus, where, as in the instant case, a complaint does not challenge
an agency action or inaction regarding a specific term, condition or
privilege of employment, a claim of harassment it is still actionable if,
allegedly, the harassment to which the complainant has been subjected
was sufficiently severe or pervasive to alter the conditions of the
complainant's employment. A complaint should not be dismissed for failure
to state a claim unless it appears beyond doubt that the complainant
cannot prove a set of facts in support of the claim which would entitle
the complainant to relief. The trier of fact must consider all of the
alleged harassing incidents and remarks, and considering them together
in the light most favorable to the complainant, determine whether they
are sufficient to state a claim. Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997). In applying this standard,
we conclude that complainant has stated a viable claim of hostile work
environment based on discrimination.
Finally, the Commission notes that complainant has alleged reprisal as one
of the basis of the alleged hostile work environment. The Commission's
federal sector case precedent has long defined an "aggrieved employee"
as one who suffers a present harm or loss with respect to a term,
condition, or privilege of employment for which there is a remedy.
Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April
21, 1994). However, under the Commission's broad view of reprisal,
any adverse treatment that is based upon a retaliatory motive and is
reasonably likely to deter the charging party or others from engaging
in protected activity, states a claim. See Lindsey v. United States
Postal Service, EEOC Request No. 05980410 (November. 4, 1999) (citing
EEOC Compliance Manual, No. 915.003 (May 20, 1998)). Therefore, we
conclude that this legal standard should have been applied to this
case and complainant should not have been required to demonstrate that
he is "aggrieved" under the Diaz standard, but only to allege that he
suffered adverse treatment that is based upon a retaliatory motive and
is reasonably likely to deter the charging party or others from engaging
in protected activity. Complainant has met this requirement.
Upon a review of the record, we find that complainant has stated a
cognizable claim under EEOC regulations. Thus, we find that the AJ's
dismissal of the incidents identified above for failure to state a claim
was improper. Accordingly, the agency final order implementing the AJ's
decision to dismiss complainant's complaint for failure to state a claim
is REVERSED. As such, the complaint is REMANDED for further processing
in accordance with the ORDER below.
ORDER
The agency shall submit to the Hearings Unit of the EEOC's Dallas
District Office the request for a hearing, as well as the complaint file,
within thirty (30) calendar days of the date this decision becomes final.
The agency shall provide written notification to the Compliance Officer at
the address set forth below that the complaint file has been transmitted
to the Hearings Unit of the Dallas District Office. Thereafter, the
Administrative Judge shall issue a decision on the complaint in accordance
with 29 C.F.R. � 1614.109, and the agency shall issue a final action in
accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the complainant.
If the agency does not comply with the Commission's order, the complainant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,
1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled "Right to File A Civil
Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
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 (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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 21, 2009
__________________
Date
1 The record reflects that in September 2007, complainant was terminated
from agency employment.
2 The record reflects that claim 3 was later amended to the instant
complaint.
??
??
??
??
2
0120091555
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120091555
8
0120091555