Joseph H. Washington, Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionOct 5, 2010
0120101983 (E.E.O.C. Oct. 5, 2010)

0120101983

10-05-2010

Joseph H. Washington, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.


Joseph H. Washington,

Complainant,

v.

Tom J. Vilsack,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 0120101983

Hearing No. 570-2009-00288X

Agency No. FAS-2008-00284

DECISION

Complainant filed an appeal with this Commission concerning his complaint of unlawful employment discrimination. For the reasons set forth, we AFFIRM the Agency's decision, finding no discrimination.

BACKGROUND

The record reveals that, during the relevant time, Complainant was employed as an Information Technology (IT) Specialist in the Infrastructure Management Branch, Information Technology Division, Foreign Agriculture Service in Washington, D.C. Report of Investigation (ROI), at 1. Believing that he was a victim of discrimination, Complainant sought EEO counseling and subsequently filed a formal complaint.

Complainant alleges that he was subjected to discrimination on the bases of race (African-American) and color (black) when:

1. On December 5, 2007, Complainant received a hostile electronic mail message from a co-worker.

2. In June 2007, Complainant was denied an opportunity to be a team leader for the Buenos Aires worksite.

3. On May 10, 2007, Complainant received a negative interim performance review.

4. On April 12, 2007, management questioned Complainant's abilities and informed him that he may be placed on an Opportunity to Improve (OTI).

At the conclusion of the investigation, Complainant received a copy of the investigative report. Additionally, the Agency informed Complainant of his right to request a hearing before an EEOC Administrative Judge (AJ), or alternatively, to receive a final decision from the Agency. Complainant requested a hearing before an AJ.

On February 2, 2010, an AJ issued a decision without a hearing finding that there was no genuine issue of material fact in dispute, and concluded that Complainant had not been discriminated against as alleged. Specifically, the AJ found that the Agency presented legitimate, nondiscriminatory reasons for its actions, which Complainant failed to rebut.

On March 11, 2010, the Agency, fully implementing the AJ's decision, issued a decision finding no discrimination. Complainant appealed from that decision.

CONTENTIONS ON APPEAL

On appeal, Complainant stated that the AJ failed to consider the key factors, which blatantly show a pattern of discrimination. Complainant said that a key point was the Performance Appraisals in which whites were rated higher than blacks and given bonuses, whereas blacks were not. Complainant asserted that the documentation clearly showed that management violated the Agency's Discrimination policy and condoned and supported a hostile work environment, which he was subjected to. Complainant claimed that the AJ's decision solely rested on a single fact that Complainant did not hear the co-worker make racial slurs. Complainant argued that other supporting documentation included in this investigation seemed to be ignored. Complainant articulated that the AJ failed to take into account that his job performance was affected by these conditions.

Complainant also stated that, during the discovery period, he submitted a request for production of documentation to the Agency and copied the AJ. Complainant said that the Agency failed to provide a response concerning this documentation. Complainant argued that the documents would have proven that no disciplinary action was taken against the co-worker, and that the co-worker was not counseled for his actions. Complainant claimed that the documents would have shown that the co-worker was undergoing a similar discrimination complaint. Complainant asserted that the documents were intentionally held back by the Agency. Complainant's Appeal at 1-2.

In response to Complainant's appeal, the Agency argued that the AJ's Summary Judgment in their favor was appropriate and the harassing conduct was neither severe nor pervasive. The Agency asserted that Complainant failed to place the Agency on notice of the alleged harassment. The Agency claimed that Complainant failed to prove that the alleged harassment was based on his race or color. The Agency articulated that Summary Judgment was proper despite Complainant's request for documents inasmuch as Complainant's discovery and motion to compel requests were untimely and Complainant provided no basis for staying consideration of Summary Judgment. Agency's Response at 1-7.

ANALYSIS AND FINDINGS

Upon review, we find that Complainant had the opportunity to engage in discovery. In response to the Agency's Motion for Summary Judgment filed on July 6, 2009, Complainant raised, for the first time with the Commission, his allegedly unanswered discovery requests to the Agency. The AJ stated that discovery in this matter closed on May 14, 2009. The AJ found that, to the extent Complainant's note contained within his Response could be considered a motion to compel, it was clearly untimely. AJ's Decision, at 2.

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.

Upon review, we find that the issuance of summary judgment was appropriate as there are no genuine issues of material fact. Regarding claim 1, the Supervisory IT Specialist (Supervisor) stated that he did not see anything hostile in the electronic mail message between Complainant and the co-worker. The Supervisor said that the co-worker told Complainant things that needed to be done. The Supervisory asserted that the Kansas Coop Site was set up just like Brussels so it should not have been a difficult task for a GS-13. ROI, at Exhibit 7.

The Deputy Chief Information Officer (Deputy) stated that she was not aware of the alleged hostile electronic mail message. The Deputy said that she was aware of the co-worker's abruptness and has raised these issues with the co-worker. The Deputy asserted that she has received complaints relative to the co-worker from others and that the Supervisor and Human Resources Department (HRD) have had discussions with the co-worker to tone it down and treat all co-workers and contractors with respect. The Deputy claimed that, if there were any more reoccurrences, the next step will be a Letter of Caution or Reprimand. The Deputy concluded that Complainant's belief about being put in a position to fail because he was an African-American was incorrect and if his skills were questioned, it was due to the lack of a complete and accurate task assignment by Complainant. The Deputy articulated that there were issues with the co-worker that were being addressed and that she did not see the co-worker as a discriminating type of Supervisor and certain that his management decisions were based on Complainant's abilities and not race and color. ROI, at Exhibit 8.

With respect to claim 2, the Supervisor stated that Complainant was not treated disparately. The Supervisor articulated that the former program manager and her contractors decided who would be the strongest person to pull everyone together to implement the servers for an electronic mail overseas post. The Supervisor argued that he agreed with the selection based solely on the ability to do the job. ROI, at Exhibit 7.

As to claim 3, the Supervisor stated that Complainant did not receive a negative interim performance review. The Supervisor said that the previous manager wrote up a review that was not so good, and because there was no performance plan in place, the review was discarded. The Supervisor asserted that he evaluated Complainant's performance in June 2007 after performance standards were issued. ROI, at Exhibit 7. The Deputy stated she was not aware of Complainant receiving a negative interim performance review and that she was not involved in the rating of Complainant. The Deputy stated that Complainant could have improved his interim review by completing his tasks more accurately and on time. ROI, at Exhibit 8.

Concerning claim 4, the Supervisor stated that the co-worker questioned Complainant's abilities; however, it had nothing to do with race and that Complainant can not rest on his laurels. The Supervisor said that the Agency pays for performance today, not for what Complainant did five years ago. ROI, at Exhibit 7. The Deputy stated that Complainant was told he might be placed on an OTI because his actual abilities were in question upon return from the Brussels hub site trip in April 2007, when the team expressed concerns about Complainant's experience and abilities to the Supervisor and another manager. The Deputy asserted that she was not involved in the assessment. However, the Deputy argued that she was available for discussions of the potential OTI placement. The Deputy claimed that Complainant was not placed on an OTI because he did not have current performance standards in place by his previous supervisor, who was no longer working with the Agency. The Deputy articulated that she was not aware of any reasons why Complainant believed his race or color were factors in management questioning his abilities and informing him that he may be placed on an OTI. ROI, at Exhibit 8.

As to the claim of harassment, the AJ found that Complainant had not shown that the co-worker's treatment of him was based on his race, as opposed to the co-worker's generally aggressive manner towards most other employees. Moreover, the AJ found that Complainant failed to establish that the incidents, even if they occurred as Complainant alleged, unreasonably interfered with his performance. AJ's Decision, at 4.

CONCLUSION

The Commission finds that Complainant failed to rebut the Agency's articulated legitimate, nondiscriminatory reasons for its actions. Additionally, the Commission finds that Complainant has failed to show by a preponderance of the evidence that he was subjected to discrimination on the bases of race or color. Moreover, Complainant has failed to show that the alleged harassing incidents, when considered together, constitute a hostile work environment. .

The Agency's decision finding no discrimination 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

October 5, 2010

__________________

Date

2

0120101983

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013