Joseph L. Boyle, Complainant,v.Gale A. Norton, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionJun 19, 2001
01996602_01A10671 (E.E.O.C. Jun. 19, 2001)

01996602_01A10671

06-19-2001

Joseph L. Boyle, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.


Joseph L. Boyle v. Department of Interior

01996602, 01A10671

06-19-01

.

Joseph L. Boyle,

Complainant,

v.

Gale A. Norton,

Secretary,

Department of the Interior,

Agency.

Appeal No. 01996602, 01A10671

Agency No. FNP-98-032, FNP-99-064, FNP-99-067

Hearing No. 170-A0-8118X

DECISION

INTRODUCTION

On August 26, 1999 and October 30, 2000, Joseph L. Boyle (complainant)

initiated appeals to the Equal Employment Opportunity Commission (EEOC

or Commission) from the final decisions of the Department of the Interior

(agency), concerning his complaints 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 appeals are accepted pursuant to 29 C.F.R. � 1614.405. For the

following reasons, we AFFIRM the agency's final decisions.

ISSUES PRESENTED

The issues presented herein are:

Appeal 1: Agency No. FNP-99-064

Whether the agency properly dismissed allegations 5, 6, 7 and 10 in

complainant's formal EEO complaint for stating the same claim that is

pending before or has been decided by the agency or Commission.

Appeal 2: Agency Nos. FNP-98-032, FNP-99-064, FNP-99-067

Whether the EEOC Administrative Judge (AJ), in making the decision not

to hold a hearing, correctly determined that there were no genuine issues

of material fact.

BACKGROUND

During the relevant time, complainant was employed as a Historian,

GS-170-11, Interpretation and Cultural Resource Management, Valley

Forge National Historical Park, Valley Forge, Pennsylvania (the Park).

Complainant had worked with the agency for 27 years. In February 1993,

complainant acquired additional responsibilities, including management

of the Wilcox Memorial Library, when his co-worker retired. Complainant

grew concerned that his Position Description (PD) did not accurately

reflect his responsibilities in light of the accretion of his duties.

According to complainant, he repeatedly requested an accurate PD from

his supervisor (Supervisor I), but she failed to perform the update.

Complainant believed that he was being subjected to a hostile work

environment based on his age (D.O.B. 11/1/46) and sex. Examples of

the alleged hostile work environment included: Supervisor I informed

complainant that there was a freeze on submitting updated PDs, however,

the Human Resources Specialist informed him that a freeze did not exist;

complainant's existing PD required him to oversee the Park's cultural

compliance procedures, but Supervisor I took the expanded duties for

herself when the duties were delegated to the Park in 1996; Supervisor

I called complainant �Boy� during a conversation; complainant did not

receive computer training, and his request to upgrade his computer

equipment was denied.<1> Complainant sought EEO counseling and

subsequently filed a formal complaint (Complaint 1; FNP-99-067) on May

1, 1997.

In May 1997, the Superintendent of the Park (Superintendent) designated an

Acting Chief, Division of Interpretation and Cultural Resources Management

(Supervisor II). Supervisor II remained in her position beyond the 120

days allowed in the agency's merit promotion statement and the Federal

Personnel Manuel by virtue of an extension. Complainant believed that,

as a result of Supervisor II's presence in the position, he was denied

the opportunity to apply for a 120-day detail to the GS-12 position

as the Acting Chief of Interpretation and Cultural Resource Management

Division. Complainant again sought EEO counseling and filed a formal

complaint (Complaint 2; FNP-98-032) on November 18, 1997. He alleged

discrimination on the bases of race (Caucasian), sex, age and reprisal

(prior EEO activity).

On April 10, 1999, complainant filed a third formal complaint (Complaint

3; FNP-98-064) on the bases of age, race, sex and reprisal.<2> In

Complaint 3, complainant alleged that the discrimination continued when:

2) complainant's new PD was falsified; 3) his request to upgrade his

position was denied; 4) his performance standards were falsified; 5)

his request to be designated Acting Division Chief of Cultural Resource

Management Division was denied; 6) he received nearly 100 letters of

thanks and appreciation, but received no recognition from Supervisor

II; 7) he was not allowed to use a government vehicle to attend park

meetings or travel, while other similarly situated employees were; 8)

he provided a 400-page report to his supervisor and never received a

response; 9) he was denied a non-competitive promotion, while other

similarly situated employees received non-competitive promotions; 10)

he was denied an alternate work schedule, while other similarly situated

employees received alternate work schedules; and 11) his request to

purchase research materials was denied.

Appeal 1

In its final decision dated July 26, 1999, the agency dismissed

allegations 5, 6, 7 and 10 in Complaint 3 for stating the same claim

that was pending before the agency or Commission in Complaint 1.

The FAD also consolidated Complaints 1, 2 and 3 for joint processing.

Complainant asserts that he is raising a new issue in the present

complaint because different officials were involved and the incidents

took place at different times. The agency makes no contention on appeal.

Appeal 2

At the conclusion of the investigation of his three complaints,

complainant was provided a copy of the investigative file and requested

a hearing before an AJ. The AJ issued a decision without a hearing

finding no discrimination.

With respect to Complaint 1, the AJ concluded that complainant failed

to show that the alleged agency conduct created an objectively hostile

or abusive environment on the bases of sex or age, because complainant

failed to show that the conduct was sufficiently severe or pervasive to

alter the conditions of employment and create an abusive environment.

With respect to Complaint 2, the AJ found that complainant's claim

was barred by the doctrine of res judicata and collateral estoppel.

With respect to Complaint 3, the AJ concluded that complainant failed to

establish a prima facie case of race, sex, age or reprisal discrimination

under a disparate treatment theory.<3> Assuming arguendo that a prima

facie case was established, the AJ found that the agency articulated

legitimate, nondiscriminatory reasons for its actions. The AJ determined

that complainant failed to present affirmative evidence to prove that the

agency's articulated reasons were pretext for discrimination. On July

18, 2000, the agency implemented the AJ's decision in its final action.

On appeal, complainant contends, among other things, that: 1) in violation

of 29 C.F.R. � 1614.109(f)(3)(iv), the AJ provided the agency with two

extensions after deadlines had passed and adopted the agency's Motion for

Summary Judgment which was filed one day late; 2) the Superintendent sent

an e-mail message to nineteen employees stating that two employees were

unsuccessful in their EEO complaints; 3) the allegation in Complaint

2 forms a separate claim of discrimination because it occurred at

a different time than the alleged identical issue; and 4) a hostile

environment has been proven with respect to Complaint 1 when the agency's

conduct is considered as a whole. The agency stands on the record and

requests that we affirm its final action implementing the AJ's decision.

ANALYSIS AND FINDINGS

Appeal 1

EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides that the agency

shall dismiss a complaint or a portion of a complaint that states the

same claim that is pending before or has been decided by the agency or

Commission. Complainant filed his first formal complaint (Complaint

1), Agency No. FNP-99-068, alleging a hostile work environment.

Complainant then filed his third formal complaint (Complaint 3),

Agency No. FNP-99-064, on April 10, 1999, alleging disparate treatment.

Complainant asserts that he is raising a new issue in Complaint 3 because

different officials were involved in the incidents and the incidents

took place at different times. Despite complainant's assertions, the

Commission remains unpersuaded because the crux of both complainant's

complaints are identical in that they both concern: 1) denial of requests

to be designated Acting Division Chief; 2) lack of recognition from his

supervisors despite many letters of appreciation; 3) denial of use of a

government vehicle; and 4) denial of a flex-time schedule. The record

contains no evidence to indicate that the issues in Complaint 3 are

different from those previously alleged in Complaint 1. Therefore,

the Commission finds the agency's dismissal of allegations 5, 6, 7 and

10 in Complaint 3 was proper. Accordingly, the agency's final decision

with respect to Appeal 1 is AFFIRMED.

Appeal 2

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 does not

sit as a fact finder. Id. 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. A disputed 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 under Title VII, an AJ

may properly consider summary judgment only upon a determination that

the record has been adequately developed for summary disposition.

Based on our careful de novo review of the entire record before us,

the Commission finds that the AJ's decision properly summarized the

relevant facts and referenced the appropriate regulations, policies,

and laws with respect to Complaint 1. We find that complainant failed to

present sufficient evidence to establish that the agency's actions created

a hostile work environment. To prevail on a harassment claim, complainant

must show that he was subjected to harassment because of discriminatory

factors. In assessing allegations of harassment, the Commission examines

factors such as the frequency of the alleged discriminatory conduct, its

severity, whether it is physically threatening or humiliating, and if

it unreasonably interferes with an employee's work performance. Harris

v. Forklift Systems, Inc., 510 U.S. 17 (1993). We agree with the

AJ that the conduct cited by complainant did not constitute unlawful

harassment, in that, even taken together and assumed to be true, the

incidents did not create a hostile work environment such that it had a

direct effect on complainant's work performance or altered the conditions

of the workplace. Enforcement Guidance: Vicarious Employer Liability for

Unlawful Harassment by Supervisors, at p.2 (June 18, 1999), citing, Oncale

v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998). Furthermore, we

find that complainant did not establish that any of the agency's actions

were motivated by discriminatory animus toward complainant's age or sex.

With respect to Complaint 2, EEOC Regulation 29 C.F.R. � 1614.107(a)(1)

applies because Complaint 2 states the same claim that has been decided

by the agency or Commission. Complainant filed a formal complaint,

Agency No. FPN-97-076, on May 23, 1997, alleging discrimination on the

bases of sex, age and reprisal when on or about May 11, 1997, he was

not selected for a temporary detail to the position of Acting Chief of

Interpretation and Cultural Resource Management Division, which created a

hostile work environment. In a recommended decision issued on February

22, 1999, the AJ found that complainant failed to prove discrimination

(EEOC Complaint No. 170-98-8274X). Complaint 2 alleged discrimination

when complainant was denied the opportunity to apply for a 120-day

detail to the position of Acting Chief of Interpretation and Cultural

Resource Management Division, GS-12. Complainant argues that the two

incidents of discrimination are separated by four months and that the

AJ refused to allow statements or documentation regarding Complaint 2

into the record during the hearing for EEOC Complaint No. 170-98-8274X.

We remain unpersuaded, however, that the two allegations are different

merely because complainant filed the complaints four months apart.

We further note that, although the AJ refused to allow statements

or documentation regarding Complaint 2 into the record, the AJ has

discretion during a hearing to limit testimony on cumulative or irrelevant

matters. See Bobrick v. Department of Health and Human Services, EEOC

Request No. 05930763 (May 12, 1994). We find that the crux of these

two complaints are identical, and therefore, Complaint 2 is dismissed.

With respect to Complaint 3, the Commission finds that the AJ correctly

determined that complainant failed to prove that he was subjected to age,

race, sex or reprisal discrimination with regard to the matters alleged.

The Commission notes that while the AJ stated that complainant failed to

establish a prima facie case of age, race, sex and reprisal discrimination

because he did not show that he was treated differently than similarly

situated employees, complainant must only present evidence which, if

unrebutted, would support an inference that the agency's actions resulted

from discrimination. See O'Connor v. Consolidated Coin Caters Corp.,

517 U.S. 308 (1996); Enforcement Guidance on O'Connor v. Consolidated

Coin Caters Corp., EEOC Notice No. 915.002, n. 4 (September 18, 1996).

Nevertheless, the AJ correctly determined that the agency articulated

legitimate, nondiscriminatory reasons for its actions. With respect

to allegation 2, the PD to which complainant objected reflected the

duties of his position, and his old PD stated that he reported to a

branch chief. With respect to allegation 3, complainant's duties did

not rise to the level of complexity warranted to support a GS-12 grade.

With respect to allegation 4, complainant chose not to participate in

his performance standards until his PD was reviewed. With respect to

allegation 8, Supervisor II believed that complainant had completed

the report while under the supervision of Supervisor I, and complainant

never told Supervisor II that she needed to review it.<4> With respect

to allegation 9, the promotions given were part of the reorganization and

additional responsibilities were given to branch chiefs. With respect to

allegation 11, a moratorium was enforced by the Superintendent against

purchasing research materials because of structural problems in the

building.<5> After the agency articulated legitimate, nondiscriminatory

reasons for its actions, the burden shifted to complainant to show

that the articulated reasons were pretext for discrimination. Here,

complainant failed to present sufficient evidence to support an inference

that the agency's actions resulted from discrimination.

On appeal, complainant contends that the AJ erred when she failed to

sanction the agency by finding in his favor even though the agency was

granted two extensions after deadlines had passed and filed its Motion

for Summary Judgment one day late. Here, the complainant argues that

the AJ should have found in his favor when the agency failed to file

its Motion for Summary Judgment in a timely manner. However, despite

complainant's arguments to the contrary, the Commission is unpersuaded

that the AJ abused her discretion when she failed to sanction the

agency. In addition, we note that while complainant asserts that the

Superintendent sent an e-mail message to nineteen employees stating that

two other employees were unsuccessful in their EEO complaints, the record

does not indicate that any such action was taken against complainant.

Furthermore, although the Superintendent's action may have a chilling

effect on the filing of EEO complaints, complainant filed all three

of the present complaints before the Superintendent's e-mail message

was sent. We therefore discern no basis on which to disturb the AJ's

finding that complainant failed to prove that he was discriminated

against based upon his age, race, sex or reprisal. Therefore, the

agency's final decision with respect to Appeal 2 is AFFIRMED.

CONCLUSION

Accordingly, the Commission AFFIRMS the agency's final decisions with

respect to Appeal 1 and Appeal 2.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

___06-19-01_______________

Date

1 Complainant provided 20 specific examples of the alleged hostile work

environment in his complaint.

2 The numbering in Complaint 3 begins with allegation 2 in order to

remain consistent with the agency's numbering in its July 26, 1999

final decision.

3 Allegations 5, 6, 7 and 10 in Complaint 3 were not addressed by the

AJ because Appeal 1 was still pending before the Commission as of the

date of the AJ's decision.

4 We note that allegations 5, 6, 7 and 10 of this complaint were properly

dismissed, and therefore are not listed.

5 We note that although the agency's civil engineer stated that the

library did not have structural problems, the third floor of the building

in which the library was housed posed structural risks.