0120130984
06-06-2013
Leonard Harmon, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Leonard Harmon,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120130984
Hearing No. 480-2010-00610X
Agency No. 09-62473-02140
DECISION
Pursuant to 29 C.F.R. � 1614.405(a), the Commission accepts Complainant's appeal from the Agency's July 14, 2011 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.
At the time of events giving rise to this complaint, Complainant worked as a Heavy Mobile Equipment Repairer, WG-5803-08, at the Agency's Public Works Department in Lemoore, California. Complainant's employment was subject to a one-year probationary period, which began on August 4, 2008. Complainant's First Level Supervisor was the Maintenance and Operations Superintendent (S1 - Caucasian, White). Complainant's Second Level Supervisor was the Deputy Production Officer (S2 - Caucasian, White).
On August 26, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), color (Black), and reprisal for prior protected EEO activity when:
1. From August 2008 to May 2009, he was subjected to a hostile work environment. Complainant cited the following instances of harassment:
a. In August 2008, a co-worker (CW1) repeatedly asked him to use the phrase "looky-heeah;"1
b. In September 2008, a co-worker (CW2) falsely accused him of sexual harassment and the false accusation resurfaced in March 2009;
c. In March 2009, a co-worker (CW3) demanded that he go outside and then falsely accused him of making threats; and
d. In mid-May 2009, a co-worker (CW4) referred to him as "Buckwheat."2
2. On May 26, 2009, S1 and S2 terminated his employment during his probationary period.
AJ's Issuance of a Decision Without a Hearing
We must first determine whether it was appropriate for the EEOC Administrative Judge (AJ) to have issued a decision without a hearing on this record. 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 AJ 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 AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
Upon review, we find that the AJ's issuance of a decision without a hearing was appropriate. On appeal, Complainant argued that a hearing "will open the eyes and ears to the truth." Even assuming all facts in favor of Complainant, however, a reasonable fact-finder could not find his favor, as explained below. Under these circumstances, we find that the AJ properly issued a decision without a hearing.
Hostile Work Environment Harassment - Comments by CW1 and CW4
As an initial matter, we note that the substance of Complainant's allegations in claims 1b (CW2 falsely accused him of sexual harassment) and 1c (CW3 falsely accused him of making threats) is that management harassed him by believing those allegations and by acting on them to his detriment, which resulted in his termination. As such, we will not analyze claims 1b and 1c under a harassment framework, but will consider them as events that are connected to the Agency's termination decision. We will only analyze claims 1a (CW1's "looky-heeah" comments) and 1d (CW4's "Buckwheat" comment) under a harassment framework.
To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (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; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In a case of co-worker harassment, an agency is liable if it knew or should have known of the misconduct, unless it can show that it took immediate and appropriate corrective action. See EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002, � I (June 17, 2009); 29 C.F.R. � 1604.11(d).
Upon review, we find that Complainant failed to establish a claim of harassment. Even assuming that the comments in claims 1a and 1d occurred as alleged by Complainant, we find that Complainant has not shown that the Agency knew or should have known of the comments by CW1 and CW4. When asked why he did not bring the comments to the attention of management, Complainant testified in his affidavit, "I was on probation and I was truly trying to hold onto that job. I saw a lot of things and worked on not getting involved." Although Complainant testified in his affidavit that his Work Leader (WL) was "quite aware of what's going on in the public work[s] department," Complainant did not specifically indicate that he had informed WL about the comments. Id. Accordingly, we find that Complainant has not shown that there is a basis for imputing liability to the Agency.
Disparate Treatment - Termination
Assuming, arguendo, that Complainant established a prima facie case of discrimination on the bases of race, color, and reprisal, we find that the Agency articulated legitimate, nondiscriminatory reasons for terminating Complainant's employment during his probationary period. Specifically, S1 and S2 testified in their affidavits that, based on written statements they received from other employees, they found that Complainant had engaged in the following instances of inappropriate conduct: (a) Complainant sexually harassed CW2 and then failed to comply with instructions to stay away from her; (b) Complainant was verbally abusive to CW3 and threatened to physically harm him; (c) Complainant became angry with WL after refusing to perform an assigned task; and (d) Complainant made comments to a co-worker (CW5) about his weight and threatened to physically harm him.
Because the Agency articulated legitimate, nondiscriminatory reasons for its actions, the burden shifts to Complainant to prove, by a preponderance of the evidence, that the Agency's reasons were a pretext for race, color, or reprisal discrimination. Upon review, we find that Complainant failed to show that the Agency's reasons were pretextual. We will now address the pretext arguments that Complainant raised on appeal.
First, Complainant argued that management relied on false accusations and false statements from employees to terminate his employment. The record contains written statements from April 2009 in which CW2, CW3, CW5, and WL described various instances of inappropriate conduct by Complainant. Although management chose to believe those employees' version of the events over Complainant's version of the events, there is no evidence that management's decision to do so was unreasonable and was motivated by Complainant's race, color, or prior EEO activity. While the record contains written statements from June 2009 in which other employees indicated that CW2 had made untruthful allegations in the past, we emphasize that those written statements did not exist when management decided to terminate Complainant in May 2009.
Second, Complainant argued that management had asked WL to write a false statement about him. Specifically, Complainant asserted that he was aware that management did so because WL had told him about it. The record contains a written statement from April 2009 in which WL described a December 2008 incident involving a display of anger by Complainant. Beyond Complainant's bare assertion, however, there is no evidence that management asked WL to make a false statement. We note that, in his affidavit, WL himself testified that Complainant had shown some aggression towards him and specifically mentioned the December 2008 incident.
Third, Complainant argued that his work performance was good and that CW3, who had performance problems, was not terminated. As the Agency stated that Complainant's conduct, and not his performance, was the reason for his termination, we find that the work performances of Complainant and CW3 are not relevant to the question of pretext.
After a review of the record in its entirety, including consideration of all statements submitted on appeal, the Commission finds that the AJ's decision without a hearing was appropriate, as there is no genuine issue of material fact or issue of credibility. Furthermore, it is the decision of the Commission to AFFIRM the Agency's final order because the preponderance of the evidence does not establish that discrimination occurred.
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
_6/6/13_________________
Date
1 Complainant testified in his affidavit that he believed CW1 wanted to hear an African-American "talk with a country and uneducated dialect" and that CW1 "like[d] the idea of an African-American acting or talking like African-Americans endured during slavery."
2 On appeal, Complainant noted that "Buckwheat" was an African-American character from the 1950's television show The Little Rascals.
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0120130984
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120130984