01A13974
09-18-2002
Michael J. Carney, Complainant, v. Mel R. Martinez, Secretary, Department of Housing and Urban Development, Agency.
Michael J. Carney v. Department of Housing and Urban Development
01A13974
September 18, 2002
.
Michael J. Carney,
Complainant,
v.
Mel R. Martinez,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 01A13974
Agency No. AT 99 08, AT 00 11
Hearing No. 150-A0-8221X
DECISION
Complainant timely initiated this appeal from the agency's final order
concerning his two equal employment opportunity (EEO) 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. Complainant alleged in his first complaint that
he had been subjected to unlawful discrimination on the bases of his
national origin (American) and disability (artificial leg) when, on March
3, 1999, he was rated as �Fully Successful� on his performance appraisal
for the rating period from February 1, 1998, through January 31, 1999.
In his second complaint, complainant alleged that he had been subjected
to unlawful discrimination on the aforementioned bases, and had been
retaliated against for participating in protected EEO activity, when,
on March 16, 1999, he was rated as �Fully Successful� on his performance
appraisal for the rating period from February 1, 1999, through January
31, 2000. Complainant also alleged in both complaints that he had been
subjected to unlawful harassment when his supervisor and a coworker made
derogatory comments about his disability.
At the conclusion of the agency's investigation into the first complaint,
complainant received a copy of the investigative report and requested
a hearing before an EEOC Administrative Judge (AJ). Complainant
subsequently requested that the second complaint be adjudicated before
the AJ at the hearing to be held regarding the first complaint, and the
AJ granted this request. Following the hearing, the AJ issued a decision
finding no discrimination.
In his decision, the AJ found that complainant had established that
he was an individual with a disability, but had nonetheless failed to
establish a prima facie case of disability discrimination, national
origin discrimination, or retaliation. The AJ further found that,
as for complainant's claims regarding his 1999 and 2000 performance
appraisals, even assuming he had established a prima facie case regarding
those claims, the agency articulated legitimate, nondiscriminatory
reasons for its actions, and complainant failed to present sufficient
evidence to rebut the agency's articulated reasons for its actions.
As for complainant's harassment claim, the AJ found that the alleged
harassing behavior, which consisted of an allegation that a coworker made
a derogatory reference about complainant's disability to another coworker,
and which was at no time stated directly to complainant, did not create a
hostile and intimidating work environment. The AJ further found that even
assuming the statements at issue were sufficiently hostile, abusive, or
intimidating, the agency took immediate and effective corrective action.
The agency's final order implemented the AJ's decision in full, and the
instant appeal followed.
As an initial matter, we note that, pursuant to 29 C.F.R. � 1614.405(a),
all post-hearing factual findings by an AJ will be upheld if supported by
substantial evidence in the record. Substantial evidence is defined as
�such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.� Universal Camera Corp. v. National Labor
Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding
regarding whether or not discriminatory intent existed is a factual
finding. Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982).
An AJ's conclusions of law are subject to a de novo standard of review,
whether or not a hearing was held.
After a thorough examination of the evidence on appeal, it is the
decision of the Commission to affirm the AJ's finding that complainant
has failed to establish that he was subjected to unlawful discrimination
and/or retaliation as claimed. In claims such as those presented by
complainant, which allege disparate treatment based upon disability and
national origin, and in retaliation for participation in the EEO process,
and where there is an absence of direct evidence of such discrimination
and/or retaliation, the allocation of burdens and order of presentation
of proof is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-03 (1973); Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas analysis to
retaliation claims); Presley v. United States Postal Serv., EEOC Request
No. 05980656 (Sept. 20, 2001) (applying McDonnell Douglas analysis
to disability claims). First, complainant must establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination; i.e., that a
prohibited consideration was a factor in the adverse employment action.
Kimble v. Department of the Navy, EEOC Appeal No. 01983020 (Aug. 22,
2001). Next, the agency must articulate a legitimate, nondiscriminatory
reason for its actions. Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). If the agency is successful in meeting its
burden, complainant must prove, by a preponderance of the evidence,
that the legitimate reason proffered by the agency was a pretext for
discrimination. Id. at 256. However, the ultimate burden of persuading
the trier of fact that the agency intentionally discriminated against
complainant remains at all times with complainant. Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 143 (2000).
As for complainant's harassment claim, we note that harassment is
actionable only if the harassment to which the complainant has been
subjected was sufficiently severe or pervasive to alter the conditions
of the complainant's employment. Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (Mar. 13, 1997). To establish a prima facie
case of disability-based harassment, complainant must prove: (1) that he
is a member of a statutorily protected class; (2) that he was subjected
to unwelcome harassment; (3) that the harassment complained of was
based on his disability; (4) the harassment affected a term, condition,
or privilege of employment; and (5) that the employer knew or should
have known of the harassment and failed to take prompt remedial action.
Flowers v. Southern Reg'l Med. Servs., Inc., 247 F.3d 229, 235-36 (2001).
The Commission finds that the AJ's findings of fact are supported by
substantial evidence in the record and that the AJ's decision properly
summarized the relevant facts and referenced the appropriate regulations,
policies, and laws. We note that complainant failed to satisfy his burden
of presenting evidence which proves by a preponderance that any of the
agency's articulated legitimate reasons for the performance rating he
received were merely pretext for unlawful disability or national origin
discrimination. See Reeves, 530 U.S. at 143. Nor was there any evidence
presented which would indicate that his 2000 performance rating was the
result of retaliation by the agency for his protected EEO activity.
Furthermore, complainant has not presented sufficient evidence to
establish that the harassment he alleged to have been subjected to
affected a term, condition, or privilege of his employment, or that
the agency failed to take prompt remedial action upon discovering the
complained-of behavior. See Flowers, 247 F.3d at 235-36. Accordingly,
we discern no basis to disturb the AJ's decision.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, it is the decision of the
Commission to AFFIRM the agency's final order.
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 (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
September 18, 2002
Date