0120091819
12-02-2010
Henry Allen, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Henry Allen,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120091819
Hearing No. 410-2008-00271X
Agency Nos. HS-06-TSA-001374,
HS-07-TSA-001498
DECISION
On March 23, 2009, Complainant filed an appeal from the Agency's February 23, 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. For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Transportation Security Officer at the Agency's work facility, the Hartsfield Jackson International Airport, in Atlanta, Georgia. AJ's Decision, at 2. Complainant worked in this position from October 2002 to January 2007. Report of Investigation at 4.
Complainant filed two EEO complaints claiming that the Agency discriminated against him. The complaints were consolidated and the claims alleged discrimination and a hostile work environment on the bases of race (African-American), sex (male), sexual orientation and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On April 26, 2006, Complainant received a Letter of Reprimand.
2. On September 3 and September 6, 2006, coworkers made derogatory allegations about Complainant being involved in sexual activities with minors. With regard to the alleged remark on September 3, 2006, a coworker stated that Complainant's female coworker's daughter has herpes and he bets when Complainant gets off work he comes down the hallway and goes into her room and comes in her mouth. As for the alleged comment of September 6, 2006, the coworker stated that when Complainant's female coworker does not have sex with him, Complainant goes into her son's room and has sex with him.
3. On October 3, 2006, a supervisor made comments about Complainant's sexual orientation. This supervisor made a comment that suggested Complainant is gay.
4. On October 5, 2006, management met with Complainant's coworkers without his knowledge.
5. On May 7, 2006, a coworker made a sexually charged defamatory statement about Complainant. The coworker allegedly stated that the reason he was late that day was because he just got through having sex with Complainant.
6. On May 15, 2006, a supervisor made a sexually charged derogatory statement about Complainant. This supervisor allegedly stated that he does not know why Complainant has no problem having an erection when he has sex with a woman but has a problem getting an erection when he has sex with him.
7. On January 18, 2007, Complainant was terminated from his position as a Transportation Security Officer.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The Agency filed a Motion for Decision Without a Hearing. The AJ denied the Agency's Motion with regard to the claim of a hostile work environment and granted the Motion with regard to claims 1, 4, and 7. The AJ considered claims 1, 4, and 7 as part of Complainant's hostile work environment claim. The AJ held a joint hearing on September 11-12, 2008, with regard to the instant complaint and a female coworker's complaint (Laronda K. Savoy v. Department of Homeland Security, EEOC Appeal No. 0120091835) and issued a decision on January 14, 2009.1
With regard to the claims where the AJ granted the Agency's Motion, in terms of claim (1), the record reflects that Complainant was issued a Letter of Reprimand after an incident where Complainant denied elevator access to and had an argument with an airport official. Hearing Transcript at 32. Complainant was cited for not bringing the matter to the attention of his supervisor and for his identification not being visible during the dispute. Id. at 33. Complainant stated that he was instructed to deny access to the elevator to anyone except the cleaning crew. Report of Investigation at 4. Complainant claimed that as a security officer, he should have been listened to a greater extent. Id. at 36. The AJ stated that this argument was not persuasive given that Complainant's identification was not visible. Id. The AJ found that the evidence would not support a finding that the discipline was issued for discriminatory reasons. Id.
With regard to claim (4), the Agency attempted to interview Complainant's girlfriend as part of an investigation regarding Complainant's case. Id. at 30. Complainant objected to the interview taking place without him being present. Id. However, the AJ noted that the Agency was obligated to interview Complainant's female coworker and not obligated to have Complainant present, and thus it did not act inappropriately. Id.
With respect to claim (7), the AJ noted that Complainant had approached a supervisor and asked him whether he was poisoning his female coworker's food and whether he was threatening people. Id. at 36. A meeting subsequently ensued between Complainant and several Agency officials. Id. at 37. During this meeting, Complainant refused to answer questions regarding the underlying incident stating he would not talk without a lawyer present. Id. The AJ noted that the Agency stated that Complainant adopted a belligerent tone during the meeting. Id. at 38. The AJ stated that Complainant acknowledged that he accused an Agency official of Italian heritage, the Deputy Assistant Federal Security Director, of looking at him like a mob boss or a Mafia boss. AJ's Decision at 5. The AJ noted that Complainant conceded that he referred to the Assistant Federal Security Director as a "Star Jones looking phony" and that he did not respond directly to the assertion that he called her an "Oprah Winfrey looking phony." Hearing Transcript at 40.
As for the claims where the AJ denied the Agency's Motion, the AJ found that Complainant failed to establish that he was subjected to harassment. AJ's Decision at 11. The AJ noted that Complainant's female coworker who also worked at the facility was the only one who claimed to have heard the derogatory remarks that were directed at her and Complainant. Id. at 4. The AJ found that the supervisors and coworkers who were accused of uttering these remarks all issued credible denials. Id. The coworker accused of stating a sexually defamatory remark on May 7, 2006, denied making the comment and the AJ noted that the coworker lacked a motive to attack Complainant since he hardly knew him and had not worked with him for several years. Id. According to the AJ, Complainant shifted his position when asked for specific answers during his testimony and he ultimately failed to support his allegations. Id. at 8. The AJ noted that Complainant maintains that he acquired a reputation among his coworkers as being a homosexual. Id. However, the AJ found that Complainant failed to identify any employees who made comments on the subject and he failed to identify a specific comment made by an unidentified employee. Id. The AJ therefore found that Complainant had no factual basis for his assertion that he had a reputation among his coworkers as being a homosexual. Id. Complainant claimed that his damaged reputation followed him to Delaware, causing him to receive cold treatment from the general public. Id. However, the AJ found that Complainant failed to provide specific evidence to support his position. Id.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
On appeal, Complainant contends that the AJ erred by not finding his witness credible on the basis that they are in a romantic relationship. Complainant maintains that his female coworker was not the only individual to hear disparaging remarks made about him, but rather she was the only person willing to testify without fear of reprisal. Complainant maintains that several Agency witnesses lacked credibility. According to Complainant, one coworker admitted that he has a history of making sexually harassing comments, and another coworker and an Agency official refused to respond to the EEO Investigator. Complainant argues that a supervisor stated he never made a sexually charged comment yet he witnessed the supervisor harassing a coworker about having a lesbian relationship. Complainant challenges the AJ's refusal to allow him to question the Deputy Assistant Federal Security Director about past harassment allegations against him. Complainant claims that it was relevant given the Agency was allowed to inquire about his history. According to Complainant, this Agency official lied several times and stated that he conducted an investigation of the harassment but that he never did. Complainant claims that the Acting Federal Security Director lied when she stated she was unaware of any allegations of sexual harassment against him as according to Complainant she secretly held a meeting with an Agency official and his female coworker. Complainant maintains that he has been discriminated against because he is a heterosexual as he claims that a secretive homosexual culture exists in Atlanta and that he is perceived as a threat to that culture.
ANALYSIS AND FINDINGS
Initially, the Commission notes that Complainant claimed that he was discriminated against on the basis of his sexual orientation. Title VII's prohibition of discrimination does not include sexual preference or orientation as a basis. See Morrison v. Department of the Navy, EEOC Request No. 05930964 (June 16, 1994); Johnson v. United States Postal Service, EEOC Request No. 05910858 (December 19, 1991). Therefore, the basis of sexual orientation was properly dismissed.
Decision without a Hearing
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, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
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). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
To establish a claim of harassment based reprisal, Complainant must show that: (1) he has participated in prior protected activity; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving her prior protected activity; (3) the harassment complained of was based on his prior protected activity; and (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment. See Humphrey v. United States Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. � 1604.11. The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). Further, the incidents must have been "sufficiently severe and pervasive to alter the conditions of complainant's employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore Serv., Inc., 23 U.S. 75 (1998). In the case of harassment by a supervisor, Complainant must also show that there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
In order to establish a prima facie case of sexual harassment, the Complainant must prove, by a preponderance of the evidence, the existence of five elements: (1) that he is a member of a statutorily protected class; (2) that he was subjected to unwelcome conduct related to his sex; (3) that the harassment complained of was based on his sex; (4) that the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) that there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897, 903 (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 on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
The record supports the Agency's explanation for its issuance of a Letter of Reprimand to Complainant and its subsequent termination of Complainant from his position. With regard to the reprimand, Complainant exercised questionable judgment by not contacting a supervisor to assist in resolving the dispute with the airport official who sought access to the elevator. Although this official was not on the access list, Complainant's overall handling of the situation and his failure to have his identification showing were legitimate, nondiscriminatory reasons for the Letter of Reprimand and Complainant has failed to show pretext. Neither of these incidents has been shown to be attributable to discriminatory intent and they did not contribute to an alleged hostile work environment. As for the termination, Complainant's belligerence and overt hostility during the interview constituted legitimate, nondiscriminatory grounds for his removal. Complainant has failed to establish that these reasons were pretext to mask discriminatory intent. With regard to Agency officials meeting with Complainant's female coworker without him being present, the record reflects that this was pursuant to an investigation of the claims made by Complainant. There is no indication that the Agency acted inappropriately or in a discriminatory fashion. Therefore, the AJ's decision without a hearing was appropriate.
Decision with a hearing
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
Despite Complainant's contention that several Agency witnesses were not credible, our review of the record indicates that Complainant did not persuasively challenge the veracity of the Agency witnesses. The record supports the AJ's credibility determination that both Complainant and his female coworker were less credible witnesses than the Agency witnesses who testified at the hearing. As the AJ pointed out, Complainant's female coworker often needed to refer to her notes, was not organized in her testimony, and seemed to be unsure about information that seemingly should have been easier for her to recall given the nature of the alleged events. AJ's Decision at 6. As for the official who Complainant maintains he should have been allowed to question about past harassment allegations against him, we observe that the AJ properly decided not to allow such questioning after he asked Complainant and his female coworker whether they had accused him of sexual harassment and each responded no. Hearing Transcript at 350. Overall, we find in light of the questionable credibility of Complainant and his female coworker that it has not been established that the relevant Agency personnel uttered the alleged remarks. We find that Complainant failed to establish pretext and that the AJ's findings based on credibility determinations that no hostile work environment existed and no discrimination occurred are supported by substantial evidence. Furthermore, even without the AJ's credibility determinations we find that Complainant failed to meet his burden of proof to prove by a preponderance of the evidence that the Agency's actions were motivated by discrimination.
CONCLUSION
The Agency's determination in its final action that no discrimination occurred is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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 2, 2010
__________________
Date
1 The EEO Investigator wrote, "Ms. Savoy is the Complainant's girlfriend." Report of Investigation at p. 5.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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