01a40746r
08-09-2005
Ismail I. Shaishaa, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Ismail I. Shaishaa v. Department of the Army
01A40746
August 9, 2005
.
Ismail I. Shaishaa,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A40746
Agency Nos. 9606G0070,9509F0240, 9503F0060
Hearing No. 160-A1-8107X
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 order.
The record reveals that complainant, an Auditor at the agency's New York,
New York facility, filed a formal EEO complaint on December 6, 1994,
alleging that the agency harassed him on the basis of national origin
(Egyptian) and in reprisal for prior EEO activity arising under Title
VII when:
He did not receive performance appraisals of "Exceptional" at any time
between 1990 and 1995;
His supervisor posted a sign in the office that read, "Hit head here"
on or about June 27, 1995;
His supervisor wrote notes stating "You will never have fun again the
rest of your life" and "He is getting mad and confused" on or about
February 2, 1992;
His request for a new computer made on or about February 8, 1994 was
not granted until December 1995;
5. His supervisor denied him career advancement by failing to evaluate
him for the purpose of the SKAP program in 1990 or 1991;
6. He was removed from federal service on or about July 11, 1992;
7. He was placed on a Performance Improvement Plan on January 7, 1992;
8. He was subjected to verbal and physical abuse between 1990 and 1998;
9. His supervisor refused to discuss resolution of an EEO complaint
either on November 22, 1994 or August 22, 1995;
10. His supervisor threatened him with removal between May and December
1991;
11. His supervisor used physical force against him in either October 1991,
November 1991, or May 1992;
12. His supervisor denied him essential audit training either in February
1991 or February 1992;
13. His supervisor refused to give him any assignments from August to
December 1991;
14. His supervisor refused to provide him with an evaluation in December
1991;
15. His supervisor denied him access to office historical files on or
about February 15, 1994;
16. The agency failed to protect him from a hostile work environment;
17. He was subjected to a stressful work environment;
18. He was reassigned from grade GS-12 to GS-11 in August of 1990;
19. He was denied a personal printer on or about May 22, 1996;
20. His supervisor incorrectly certified his time and attendance records
from January 1996 to September 1997;
21. His supervisor prevented him from producing any work from July to
December 1995;
22. He was not allowed to travel on temporary duty to the New England
Division from May to July 1994;
He was assigned unclassified duties from April 1993 to February 1999. The
supervisor also stated, �Get away from my file cabinets and never touch
them again;� and
He did not receive an award in July 1998.
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 agency moved for a decision without a hearing. In the
motion, the agency argued that complainant had raised many of the same
claims in a Merit System Protection Board (MSPB) appeal and in federal
district court. The agency further argued that claims 2, 3, 4, 9, 12, 15,
19, and 22 failed to state a claim. The AJ issued a decision without
a hearing, entirely adopting the facts and legal argument contained in
the agency's motion for a decision without a hearing. The agency's final
order implemented the AJ's decision.
On appeal, complainant contends that the AJ based his decision on
�unchecked and incomplete records.� Complainant explains that the
records are incomplete because five volumes, 3000 pages, and tapes
regarding his (MSPB) case were lost and not considered by the AJ.<1>
The agency responds that the files were reconstructed and complainant
was given a copy of all pertinent documents. The agency maintains that
the issuance of a decision without a hearing was appropriate here.
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, a decision without
a hearing is not appropriate. In the context of an administrative
proceeding, an AJ may properly consider issuing a decision without a
hearing only upon a determination that the record has been adequately
developed for summary disposition. See Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003).
Under the standards set forth in Harris v. Forklift Systems, Inc.,
510 U.S. 17 (1993), in order to prevail on a claim of harassment,
complainant must prove that: (1) she was subjected to harassment that
was sufficiently severe or pervasive to alter the terms or conditions
of employment and create an abusive or hostile environment; and (2)
the harassment was based on her membership in a protected class. See
EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris
v. Forklift Systems, Inc. at 3, 6; Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997).
In assessing whether the complainant has set forth an actionable claim
of harassment, the conduct at issue must be viewed in the context of
the totality of the circumstances, considering the nature and frequency
of offensive encounters and the span of time over which the encounters
occurred. See 29 C.F.R. � 1604.11(b); EEOC Policy Guidance on Current
Issues of Sexual Harassment, N-915-050, No. 137 (March 19, 1990); Cobb
v. Department of the Treasury, Request No. 05970077 (March 13, 1997).
However, as noted by the Supreme Court in Faragher v. City of Boca Raton,
524 U.S. 775, 788 (1998), "simple teasing, offhand comments, and isolated
incidents (unless extremely serious) will not amount to discriminatory
changes in the terms and conditions of employment." The Court noted
that such conduct "must be both objectively and subjectively offensive,
[such] that a reasonable person would find [the work environment to be]
hostile or abusive, and ... that the victim in fact did perceive it to be
so." Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742,
752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001).
As an initial matter, we note that we are unpersuaded by complainant's
appeal argument that the AJ improperly issued a decision based upon
an incomplete record. Complainant contends that missing documents
from his MSPB case could affect the outcome of the instant complaint
and a decision on the instant complaint should not be rendered until
they are recovered and considered. However, we find that there is no
evidence that the missing MSPB records are pertinent to the merits of
the instant complaint.
Upon review of complainant's complaint, we find that the matters
alleged are not severe or pervasive enough to constitute a hostile
work environment. However, we find that claims 6, 7, 18, 19, 22, and
24 are discrete acts that independently state claims of discrimination.
Nevertheless, we find that while complainant repeatedly asserted that
these alleged actions were wrong and unfair, he failed to provide any
evidence that would create an inference of national origin discrimination
or reprisal. Particularly, complainant failed to provide evidence that
similarly situated non-Egyptian employees were treated more favorably
with respect to the claimed actions, or any other evidence from which
a reasonable fact-finder could find an inference of national origin
discrimination. Likewise, complainant failed to provide evidence from
which a reasonable fact-finder could conclude that a nexus existed between
his prior EEO activity and the alleged actions. On appeal, complainant
again failed to provide evidence that would produce inferences of reprisal
or national origin discrimination, and we are unpersuaded that any further
investigation or a hearing would yield these inferences. Consequently,
we find that the AJ properly found no discrimination or harassment.
Therefore, after a careful review of the record, the Commission finds
that the issuance of a decision without a hearing was appropriate, as no
genuine dispute of material fact exists. Further, construing the evidence
to be most favorable to complainant, we reiterate that complainant failed
to present evidence that any of the agency's actions were motivated by
discriminatory animus toward complainant's protected class or activity.
Consequently, the Commission AFFIRMS the final order for the reasons
set forth in this decision.
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:
_____________________________ _August 9, 2005__________
Carlton M. Hadden, Director Date
Office of Federal Operations
1Apparently, the files were destroyed in the terrorist attacks of
September 11, 2001.