0120073487_et_al
11-14-2007
Louis Johnson, III, Milton M. Powell, Ronald K. Baber, and Ronald S. Eley, Complainants, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Louis Johnson, III, Milton M. Powell,
Ronald K. Baber, and Ronald S. Eley,
Complainants,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal Nos. 0120073487, 0120073592, 0120073490, 0120073491
Hearing Nos. 430200700031X, 4300200700031X, 430200700058X, 430200700065X,
430200700066X
Agency Nos. 0400187045R, 0400187046R, 0400187042R, 0400187043
DECISION
On August 3, 2007, complainants filed appeals from the agency's July 18,
2007 final order concerning their equal employment opportunity (EEO)
complaints 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. The appeals are deemed timely and are accepted pursuant
to 29 C.F.R. � 1614.405(a). The appeals are consolidated pursuant to
29 C.F.R. � 1614.606. For the following reasons, the Commission VACATES
the agency's final order and REMANDS the matter for a hearing.
ISSUES PRESENTED
Whether the AJ's decision to issue a decision without a hearing was
appropriate.
BACKGROUND
At the time of events giving rise to this complaint, complainants worked
as Electricians in the Ship to Shore Division, Utilities Department,
Naval Facilities Engineering Command. All were supervised by S1.1
Complainant's alleged that S1 subjected them to a racially harassing
environment, permeated by racial epithets, jokes, denial of leave and
unequal distribution of work assignments.
Specifically, on or about March 22, 2004, complainants filed separate
EEO complaints alleging that they were discriminated against on the
basis of race (African-American) when:
1. they were subjected to a hostile work environment; and
2 they were subjected to disparate treatment in the form of leave
denial, work/shift assignments, and restricted access to government
vehicles.
The complaints were initially dismissed for failure to state a claim.
The Commission found it improper for the agency to have dismissed the
complaints, and remanded the complaints for investigation. See Barber,
Eley, Powell and Johnson, EEOC Request Nos. 05A50657, 05A50771, 05A0972
and 05A0973 (May 18, 2005).
At the conclusion of the investigation, complainants were provided with a
copy of the report of investigation and notice of their right to request
a hearing before an EEOC Administrative Judge (AJ). Complainants timely
requested a hearing. Over the complainants' objections, the AJ assigned
to the case granted the agency's May 7, 2007 Motion for a Decision
Without a Hearing and issued a decision finding no discrimination on
June 12, 2007.
In her decision, the AJ found no dispute that complainants were not
subjected to disparate treatment with respect to leave. Complainants
alleged that S1 stated that no leave would be granted on a heavy work day,
however, that S1 and two other Caucasian employees were on leave on such
a day, which occurred on February 13, 2004. However, because none of the
complainants actually requested leave on February 13, 2004, the AJ found
complainants failed to establish a prima facie case of discrimination.
Furthermore, complainants did not establish that they were ever in fact
denied leave.
As for their claim that African-American employees were denied the
ability to work on the first shift, the AJ also found no inference of
discrimination. Almost all complainants withdrew this claim ultimately.
The only one who continued to make this claim was complainant Powell,
who actually worked the first shift and then left voluntarily.
Complainants claimed that they were always assigned to the more difficult
tasks, and that Caucasian employees got to pick their assignments.
Specifically, the AJ found that a Caucasian employee was routinely
assigned to the submarines, which were known to be an easier work
assignment. Although complainants may have established a prima facie
case, the AJ found they failed to establish the agency's reason for the
work assignments were a pretext for discrimination. In that regard,
S1 averred that the individual assigned to the submarines was assigned
there because of health reasons, and because the customer requested him.
Complainants also alleged that this comparative employee was granted the
sole use of a particular truck and gas card, and did not have to turn his
card in at the end of the day. The AJ found that he was permitted to use
this particular truck because it worked best for his submarine assignment.
The AJ found complainants failed to establish discrimination with respect
to these incidents.
Finally, the AJ examined complainant's harassment claim, which consisted
of evidence that another co-worker (CW) heard S1 repeatedly use the
term "nigger," but not in the presence of any of the complainants.
Furthermore, complainant alleged that they saw S1 display a cartoon of
the White House with a rebel flag, with a caption indicating the picture
depicted what would happen if Willie Nelson was president. Complainants
also alleged they heard S1 describe a new car for the "brothers" that
had a steering wheel in the middle of the dash. Finally, complainants
alleged that they heard S1 refer to an African American co-worker as
""big boy," as well as refer to others as "Jew Boy" and Rabbi," as well
as other comments about other ethnicities.
The AJ found that assuming what complainants said was true, their
claim did not raise a prima facie case of harassment because the conduct
alleged did not rise to the level of an intimidating, hostile or offensive
work environment. In so finding, the AJ found that complainants did not
actually hear S1 use the term "nigger," they only heard this information
second hand, from CW. Furthermore, she found that the comments directed
at other ethnicities did not support complainants' claim of a hostile
work environment. In sum, the AJ found the comments were isolated, and
did not result in any tangible employment action. In that regard, the AJ
found that even if complainants established a prima facie case, there was
no way to impute liability to the employer. Rather, the evidence revealed
that once the complainants reported the matter through the EEO process,
the agency conducted an investigation and issued S1 a Letter of Caution.
The AJ found there were no subsequent allegations of harassment after
the Letter of Caution was issued and S1 apologized to complainants.
The agency subsequently issued a final order adopting the AJ's
finding that complainants failed to prove that they were subjected to
discrimination as alleged. This appeal followed.
CONTENTIONS ON APPEAL
On appeal, complainants argue that they did allege sufficient facts to
support a claim of hostile work environment, including the claims that
they were denied leave, given harsher work assignments than Caucasian
employees, and denied other benefits of employment. Furthermore, they
argue that they were subjected to a barrage of racist jokes and comments,
which, even if heard second hand, are sufficient to raise a prima facie
case of harassment. Furthermore, they contend that there are issues of
credibility which can only be resolved at a hearing.
In response, the agency states there is no dispute of material fact
with respect to whether the complainants were denied leave, assigned
difficult assignments or denied their request to work the first shift.
As for the hostile work environment claim, the agency maintains that none
of complainants ever heard S1 use the term "nigger," and did not even
know about S1's alleged use of the term until February 2004. Accordingly,
the agency contends that complainants were not subjected to a hostile work
environment, if they did not personally hear the term used. Furthermore,
any of the other evidence of jokes or derogatory terms was neither severe
nor pervasive enough to constitute a hostile work environment.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the agency's final order adopting them, de novo.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from
an agency's final action shall be based on a de novo review . . .");
see also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9,
1999). (providing that an administrative judge's "decision to issue a
decision without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be
reviewed de novo"). This essentially means that we should look at this
case with fresh eyes. In other words, we are free to accept (if accurate)
or reject (if erroneous) the AJ's, and agency's, factual conclusions and
legal analysis - including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal
employment discrimination statute was violated. See id. at Chapter 9,
� VI.A. (explaining that the de novo standard of review "requires that
the Commission examine the record without regard to the factual and
legal determinations of the previous decision maker," and that EEOC
"review the documents, statements, and testimony of record, including
any timely and relevant submissions of the parties, and . . . issue its
decision based on the Commission's own assessment of the record and its
interpretation of the law").
We must first determine whether it was appropriate for the 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. 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 establish a prima facie case of hostile environment harassment,
the complainants 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 the 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 McCleod v. Social Security Administration, EEOC
Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee,
682 F.2d 897 (11th Cir. 1982).
After a review of the record, we find that the AJ's decision to
find for the agency without a hearing was an error, as we cannot say
that as a matter of law, the incidents of harassment do not amount
to a hostile work environment. Complainant's claim of a hostile work
environment rests on their claim that S1 displayed an offensive cartoon
that contained a Rebel flag, a joke about a car the "brothers" would
want, and second-hand evidence of the repeated use of the word nigger.
They also claim that S1 assigned them more harsh work assignments than
their Caucasian co-workers, denied leave requests, and denied them other
benefits of employment. Although the cartoon and the joke about the car
were mentioned in the undisputed facts portion of the AJ's decision,
neither was mentioned by the AJ in her analysis. As such, we are not
persuaded that this evidence was considered by the AJ in the decision.
Furthermore, the AJ found that the comments directed at individuals of
other ethnicities, such as "Jew Boy" and "banana boat" did not support
complainants' racially hostile claim, even though the comments were made
in the presence of complainants.
These comments however, should have been considered by the AJ because
whether an environment is hostile or abusive can only be determined by
looking at all the circumstances. Harris v. Forklift Sys., Inc. 510
U.S. 17, 23 (1993). As for the claims that S1 used the term "nigger"
outside of complainants' presence, the fact that a complainant learns
second hand of a racially derogatory comment by a co-worker can impact
the work environment. See Schwapp v. Town of Avon, 118 F.3d 106,
111 (2d Cir. 1997)(evidence of harassment heard second hand relevant
to hostile work environment). In that regard, complainant Johnson
presented particularly hostile evidence, when S1 allegedly referred to
him and threatened, "I'll get that nigger." Accordingly, we find that
when properly considered, these comments and jokes could establish a
racially hostile work environment, and it was improper for the AJ to
find for the agency without a hearing.
The record also reveals that a hearing is necessary in order to resolve
credibility disputes, such as whether the comments were in fact made, as
S1 denies that he made the comments. One of complainants' witnesses, CW,
testified that S1 made the comments, and referred to African-Americans
as "niggers" on several occasions in 2003 and 2004. Furthermore,
complainants allege that they were given more difficult assignments,
which S1 also denies. Instead, S1 testified that another co-worker was
assigned to the easier submarine assignment because of health problems.
However, a hearing is necessary in order to assess the credibility of
these witnesses.
An employer is subject to vicarious liability for harassment when it is
"created by a supervisor with immediate (or successively higher) authority
over the employee." See Burlington Industries, Inc., v. Ellerth, 524
U.S. 742, 760-765 (1998); Faragher v. City of Boca Raton, 524 U.S. 775,
807 (1998). However, where the harassment does not result in a tangible
employment action the agency can raise an affirmative defense when
complainant establishes a prima facie case, which is subject to proof by
a preponderance of the evidence by demonstrating: (1) that it exercised
reasonable care to prevent and correct promptly any harassing behavior;
and (2) that complainant unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the agency or to avoid
harm otherwise. See Burlington Industries, supra; Faragher, supra;
Enforcement Guidance: Vicarious Liability for Unlawful Harassment by
Supervisors, EEOC Notice No. 915.002 (June 18, 1999). In her decision,
the AJ found, that even if complainants established a prima facie case of
harassment, there was no liability on the part of the agency because there
had been no tangible employment action, and the agency had established
its affirmative defense. However, if complainants can prevail on their
work assignment claims, then the agency has no affirmative defense.
Accordingly, in light of the need to assess S1's credibility regarding
the work assignment issue, the matter of liability is still viable.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we VACATE the agency's
decision and REMAND the matter for further processing in accordance with
the ORDER below.
ORDER
The agency shall submit to the Hearings Unit of the Charlotte District
Office the request for a hearing within fifteen (15) calendar days of
the date this decision becomes final. The agency is directed to submit a
copy of the complaint file to the EEOC Hearings Unit within fifteen (15)
calendar days of the date this decision becomes final. The agency shall
provide written notification to the Compliance Officer at the address set
forth below that the complaint file has been transmitted to the Hearings
Unit. Thereafter, the Administrative Judge shall issue a decision on the
complaint in accordance with 29 C.F.R. � 1614.109 and the agency shall
issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
11/14/07
Date
1 Complainant Eley, was detailed to the Ship to Shore Division.
??
??
??
??
2
0120073487
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036