01A15220
04-18-2002
Gerold J. Gallegos, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Gerold J. Gallegos v. Department of the Interior
01A15220
April 18, 2002
.
Gerold J. Gallegos,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A15220
Agency No. BIA-99-008
Hearing No. 320-AO-8389X
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.
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 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-1101-11, Contract Specialist at the agency's Aberdeen
Area Office facility in South Dakota. On July 23, 1998, complainant's
doctor recommended that he take two weeks off from work. On July 30,
1998, complainant submitted a request for annual leave in lieu of sick
leave from August 10, 1998, through August 20, 1998. On August 18,
1998, complainant's doctor again recommended that he take two weeks
off from work. Complainant submitted a request for annual leave in
lieu of sick leave from August 24, 1998, through September 10, 1998.
On September 14, 1998, complainant alleged that the two forms (SF-71) he
had submitted for medical leave had not been approved. The first SF-71
was for leave requested from August 9, 1998, through August 23, 1998.
The second SF-71 was for leave requested from August 23, 1998, through
September 12, 1998.
The record reflects that complainant submitted the leave requests
because he was under tremendous stress and high anxiety related to
his job. Complainant did not take any action on his requests for leave.
Complainant claims that he was told that his requests for medical leave
were not approved. As a result, complainant took annual leave for the
absences. Complainant's first line supervisor (S1: Native American,
female) stated that complainant requested annual leave in lieu of sick
leave. S1 also stated that complainant did not have enough sick leave
available at the time of the medical leave request to cover the leave.
On August 14, and August 19, 1998, S1 signed the SF-71 approving annual
leave for the absences complainant requested. As of September 26, 1998,
complainant's sick leave balance was a minus 111.
On September 16, 1998, complainant attended a meeting with management
to discuss the need for a Temporary Assistance to Needy Family (TANH)
specialist position. Complainant stated that he felt belittled and
intimidated at the meeting due to the manner in which the facility's
Area Director (S3: Native American, female) spoke to him. On September
21, complainant submitted an administrative leave request to attend the
Employee Assistance Program (EAP) on September 24, 1998, for counseling.
Complainant stated that S1 never notified him whether the leave request
was approved. The record reflects that S1 could not sign the leave
request because it was a request for administrative leave. On September
24, 1998, S2 approved complainant's request.
Complainant sought EEO counseling on September 15, 1998. Subsequently,
complainant filed a formal EEO complaint on December 28, 1998, alleging
that the agency had discriminated against him on the bases of national
origin (Hispanic), sex (male), age (43), and reprisal for prior EEO
activity when:
(1) on September 14, 1998, he learned that the two SF-71 applications he
submitted for medical leave with a doctor's statement were not approved,
requiring that he take annual leave;
on September 16, 1998, the Area Director, in a very hostile manner,
told complainant that he did not want to argue with him and who gets
that last word, sit up straight, and unfold your arms;
on September 21, 1998, complainant submitted a leave slip to his
supervisor and it was never approved;
a meeting that he was expected to attend on September 25, 1998, at
Sisseton was scheduled while he was out of the office and he was not
told about the meeting until two and one half hours before the meeting;
on September 30, 1998, he was subjected to verbal threats of bodily
harm and verbally abused by the Acting Area Contracting Officer (CO); and
on November 16, 1998, he submitted his travel voucher to CO for
signature, and it was not signed for several days and then was passed
on to someone else for signature.
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 AJ issued a decision without a hearing,
finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of national origin, sex, and age 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 concluded
that complainant failed to establish a prima facie case of reprisal
discrimination. In particular, the AJ found that complainant did not
establish a causal connection between his prior protected activity and
the adverse employment action. The AJ further concluded that complainant
did not establish a prima facie case of hostile working environment
based on national origin, sex, and/or age.
The agency's FAD implemented the AJ's decision. Complainant makes no
new contentions on appeal, and 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.
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).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case
of reprisal by showing that: (1) he engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he was subjected to adverse treatment by the agency; and (4) a nexus
exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
In determining whether a harassment complaint states a claim in cases
where a complainant had not alleged disparate treatment regarding a
specific term, condition, or privilege of employment, the Commission
has repeatedly examined whether a complainant's harassment claims,
when considered together and assumed to be true, were sufficient to
state a hostile or abusive work environment claim. See Estate of
Routson v. National Aeronautics and Space Administration, EEOC Request
No. 05970388 (February 26, 1999).
Consistent with the Commission's policy and practice of determining
whether a complainant's harassment claims are sufficient to state a
hostile or abusive work environment claim, the Commission has repeatedly
found that claims of a few isolated incidents of alleged harassment
usually are not sufficient to state a harassment claim. See Phillips
v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12,
1996); Banks v. Health and Human Services, EEOC Request No. 05940481
(February 16, 1995). Moreover, the Commission has repeatedly found that
remarks or comments unaccompanied by a concrete agency action usually are
not a direct and personal deprivation sufficient to render an individual
aggrieved for the purposes of Title VII. See Backo v. United States
Postal Service, EEOC Request No. 05960227 (June 10, 1996); Henry v. United
States Postal Service, EEOC Request No.05940695 (February 9, 1995).
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
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).
The Commission agrees with the AJ that complainant failed to establish
a prima facie case of national origin, sex and/or age discrimination.
Specifically, we find that complainant has not presented evidence that
he was treated less favorably than similarly situated co-workers.
In regard to complainant's claim of reprisal discrimination, even
assuming, arguendo, that complainant did establish a prima facie case,
we find that the agency articulated legitimate, nondiscriminatory reasons
for its actions. In particular, the record reflects that complainant
had to take annual leave because he was minus 111 sick leave hours.
The Commission also finds that complainant has not presented sufficient
evidence to support a claim of hostile working environment and/or
harassment. The fact that complainant's supervisor instructed him to sit
up and to unfold his arms is conduct that is neither severe nor pervasive.
In addition, the record shows that the incident on the elevator whereby
complainant felt that CO threatened him, amounts to a verbal altercation
that lasted only the duration of the elevator ride. In point of fact,
the record shows that complainant was the aggressor and the instigator
of the incident.
The Commission further finds that complainant failed to present evidence
that more likely than not, the agency's articulated reasons for its
actions were a pretext for discrimination. Under these circumstances,
and 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 18, 2002
__________________
Date