0120060032
05-12-2008
John Dismond, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
John Dismond,
Complainant,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01200600321
Hearing No. 120-2004-40442X
Agency No. 2004-2042
DECISION
Complainant filed an appeal from the agency's August 30, 2005 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 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 Supervisor of the agency's Motor Pool at the Veterans Administration
Medical Center facility in Richmond, Virginia. On July 26, 2000,
complainant filed an EEO complaint alleging that he was harassed on the
bases of race (Black) and age (52) when:
1. October 25, 1999, complainant was reassigned from the position
of Supervisor of Transportation and Maintenance to the Utility Plant
(resulting in complainant working (or being moved from) day shift to
evening shift because his position was being abolished);
2. On December 28, 1999, complainant was forced to sign an
application for early retirement with incentive payment;
3. On June 23, 2000, complainant learned that his former subordinate
employee was still performing the duties of complainant's former
position;
4. On June 28, 2000, complainant learned that his former supervisor
referred to complainant as a "dinosaur;" and
5. On June 28, 2000, complainant learned that his former supervisor
discussed encouraging complainant to take an early retirement with
another employee.
An EEOC Administrative Judge (AJ) granted the agency's motion for a
decision without a hearing and issued a decision without a hearing
finding no discrimination on August 19, 2005.2
In his decision, the AJ found that none of the material facts
remained in dispute. Specifically, the AJ found that complainant's
position was abolished in late 1999, through the agency's decision
to discontinue the in-house motor pool in favor of using a contract
service to provide transportation to the agency's veteran customers.
The agency reassigned complainant, E1, an employee that complainant
supervised, and the other employees from the motor pool to other areas
of the agency, while maintaining the same grade and pay the employees
had before the reorganization. Complainant was assigned to the utility
area where his duties included minor air conditioning repairs. E1 was
assigned to maintenance and scheduling of the few remaining vehicles the
agency retained. The AJ noted that complainant asked to be assigned to
the night shift and that he received additional pay (night differential)
for working on the second shift. The AJ also noted that complainant
inquired about early retirement opportunities and discussed with the
agency's human resources personnel, the incentives being offered by the
agency in late 1999. Complainant signed a statement in December 1999,
asking that he be considered for the voluntary separation incentive
program (VSIP). Complainant's retirement became effective December 31,
1999, and complainant received a $25,000 VSIP payment. In June 2000,
while speaking with E1, complainant learned that E1 was performing
complainant's former duties (those tasks complainant performed before
the reorganization, without the supervisory aspects). Complainant filed
his complaint on July 26, 2000, claiming that the reorganization had been
undertaken to force older, Black workers to retire, only to be replaced
by other employees.
The AJ found that complainant did not establish a prima facie case of
either race or age discrimination with respect to his claims regarding
the agency's reorganization or his voluntary retirement inasmuch as
complainant did not identify any similarly situated employees not in his
protected groups, who were treated better than he was. The AJ noted
that E1, the employee who supposedly assumed complainant's duties,
is also Black, and less than three years younger than complainant.
The AJ found that taking all of the remaining incidents in totality,
complainant failed to establish a prima facie case of harassment
based on race or age because the incidents were neither so severe, nor
pervasive that they created a hostile work environment. The AJ noted that
complainant did not claim that S1, his former supervisor, used the term
"dinosaur" in any conversation or discussion that included complainant.
Rather, another employee, E2, told complainant later that S1 had used
that term. Assuming that S1 had indeed encouraged E2 to discuss early
retirement options with complainant, the AJ found nothing in the record
indicated that complainant was coerced or forced to take the voluntary
early retirement and that complainant did receive the incentive offered
in exchange for his retirement application. The AJ found that no
discrimination occurred as alleged in complainant's complaint. The AJ
found, moreover, that complainant's claims were untimely raised with an
EEO Counselor.
The agency issued a final order on August 30, 2005, adopting the AJ's
decision.
ANALYSIS AND FINDINGS
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. Department of Defense, 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 he or
she 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). 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. Texas Department
of Community 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
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
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).
Complainant alleges that he was subjected to harassment. To establish
a prima facie case of harassment, a complainant must show that: (1)
he is a member of 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 the
statutorily protected class; 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. Humphrey v. United States Postal
Service, EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. �1604.11.
In the instant case, we find the AJ properly granted the agency's motion
for a decision without a hearing. Specifically, we concur with the AJ
that complainant did not establish a prima facie case of age or race
discrimination with respect to any of his claims. We note, as did
the AJ, that complainant failed to identify any employees, who were
not also Black or not in his same age group, who were treated better
during the agency's abolition of the motor pool. We further concur
that the remaining allegations when viewed in their totality, do not
describe a workplace so intolerable that a reasonable person would feel
they had no choice, but to quit. We do not find that the allegations
(including complainant's forced resignation), even if they occurred
as complainant described, were so severe as to alter the conditions of
complainant's employment. Finally, we find that complainant has failed to
show that any of the agency's actions were motivated by discrimination.
Because of our disposition, we do not address the agency's dismissal of
the complaint for untimely EEO Counselor contact.
We therefore AFFIRM the agency's final decision finding no
discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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 (Z0408)
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
May 12, 2008
__________________
Date
1 Due to a new data system, the Commission has redesignated the instant
case with the above- referenced appeal number.
2 The record shows that complainant alleged class allegations in his
complaint. However, by order dated December 20, 2000, complainant's
request to be dismissed from the class complaint (EEOC Hearing
No. 120-A0-3780N) and permitted to proceed with his individual complaint
was granted. There is no indication that the instant complaint contains
any claims that could be considered part of the class complaint which
concerns awards.
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0120060032
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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