Michael J. Carney, Complainant,v.Mel R. Martinez, Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity CommissionSep 18, 2002
01A13974 (E.E.O.C. Sep. 18, 2002)

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