Ricky E. Jackson, Complainant,v.Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionMay 8, 2007
0120061838 (E.E.O.C. May. 8, 2007)

0120061838

05-08-2007

Ricky E. Jackson, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.


Ricky E. Jackson,

Complainant,

v.

Dr. Francis J. Harvey,

Secretary,

Department of the Army,

Agency.

Appeal No. 0120061838

Hearing No. 100-2004-0748X

Agency Nos. ARVICENZA03MAY000009; ARVICENZA04JUN000007

DECISION

On December 30, 20051, complainant filed an appeal from the agency's

January 19, 2006, final action 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. The appeal is deemed timely and is accepted pursuant

to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission

AFFIRMS the agency's final action.2

On July 1, 2003 and June 23, 2004, complainant filed EEO complaints,

alleging that he was discriminated against on the bases of race

(African-American), sex (male), color (Black), and reprisal for prior

protected EEO activity under Title VII of the Civil Rights Act of 1964

when: (1) between March 10, 2003 and May 16, 2003, and between April 7,

2004 through August 10, 2004, his Supervisor (S1) harassed him; and (2)

management rated him for the Senior Civilian Evaluation Report for the

period November 1, 2002 through October 31, 2003 as not meeting two (2)

of his meeting objectives; included a co-worker's name in the rating

of his performance in two (2) areas; and improperly rated him for the

period of November 1, 2002 through March 10, 2003.3

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of his right to request

a hearing before an EEOC Administrative Judge (AJ). Complainant timely

requested a hearing. The AJ assigned to the case granted the agency's

Motion for a Decision Without a Hearing and found that the complaint

did not warrant a hearing.4 Over the complainant's objections, the AJ

issued a decision without a hearing on October 26, 2005.

The AJ found that the Agency's Motion for Summary Judgment set forth

the material facts and applicable legal standards, and thus summary

judgment in favor of the agency was appropriate for the reasons stated

in the Agency's motion. The AJ found that complainant failed to set

forth any material evidentiary facts which support his allegations

of discrimination. The AJ further found that the totality of the

record failed to sustain complainant's claim that he was discriminated

against due to his race, color, sex and in retaliation for EEO activity.

The agency subsequently issued a final action adopting the AJ's finding

that complainant failed to prove that he was subjected to discrimination

as alleged.5

On appeal, complainant alleged that it was inappropriate for the AJ to

grant the Agency's Motion by concluding that there were no genuine issues

of material fact. Complainant alleged that he was never given notice

of the Agency's Motion, and thus never had the opportunity to engage in

discovery before responding to the Motion. As such, complainant alleged

that the AJ's decision should be vacated and he should be entitled to a

full hearing on the merits of the case. The agency did not respond to

complainant's appeal.

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. In the context of an administrative

proceeding, an AJ may properly consider issuing a decision without 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); Murphy v. Dept. of the Army,

EEOC Appeal No. 01A04099 (July 11, 2003).

Initially, we note that complainant alleged that he did not receive

notice of the agency's Motion for a Decision Without a Hearing and thus

was unable to respond to the Motion prior to the issuance of the AJ's

Decision. A review of the record indicates, however, that the agency

attorney who drafted the Motion certified, on August 17, 2005, that a

copy of the Motion was mailed via first class mail to the representative

for complainant in Plano, Texas. We also concur with the AJ's finding

that the material facts of the instant case are not in dispute, and that

complainant's claims were evaluated through appropriate legal analysis

in the Agency's Motion for Decision Without Hearing.

Furthermore, we find that it was appropriate for the AJ to issue a

decision without a hearing on this record. Having reviewed the evidence

and drawing all justifiable inferences in the non-moving party's favor,

we find no genuine issue of material fact. Of course, the parties are

in disagreement about certain facts, but we do not consider these facts

to be "material," meaning, they are not those which have the potential

to affect the outcome of the case. The AJ did not impermissibly weigh

any conflicting evidence, and he based his decision on a record that

was adequately developed. Although we do not normally favor summary

decisions that adopt in whole a party's Motion for a decision without

hearing, in this case, we find no harmful error in the AJ's actions.

Initially, we address complainant's allegation that S1 harassed him

between March of 2003 and August of 2004. Harassment of an employee

that would not occur but for the employee's race, color, sex, national

origin, age, disability, or religion is unlawful. See McKinney v. Dole,

765 F.2d 1129, 1138-1139 (D.C. Cir. 1985). A single incident or group

of isolated incidents will not be regarded as discriminatory harassment

unless the conduct is severe. See Walker v. Ford Motor Co., 684 F.2d 1355,

1358 (11th Cir. 1982). Whether the harassment is sufficiently severe

to trigger a violation of Title VII and the Rehabilitation Act must be

determined by looking at all the circumstances, including the frequency

of the discriminatory conduct, its severity, whether it is physically

threatening or humiliating, or a mere offensive utterance, and whether it

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

v. Forklift Sys., 510 U.S. 17 (1993).

To establish a prima facie case of hostile environment harassment,

complainant must show that: (1) he is a member of a statutorily

protected class; (2) he was 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; and (4) the harassment affected a term or condition of employment

and/or had the purpose or effect of unreasonably interfering with

the work environment or creating a hostile work environment. See 29

C.F.R. � 1604.11; Humphrey v. United States Postal Serv., EEOC Appeal

No. 01965238 (Oct. 16, 1998). After a review of the record, we concur

with the agency's contentions that complainant has failed to prove that

the alleged harassment occurred because of his race, color, sex or in

retaliation for prior EEO activity. Complainant alleged that there were

at least 11 incidents during the period at issue when S1 harassed him,

such as denial of training, overtime and compensatory time as well as

assignment of additional duties and being required to identify hours spent

working on various duties. We find no persuasive evidence that S1 took

theses actions due to discriminatory or retaliatory animus. As such,

complainant has not established a prima facie claim of harassment,

and his claim fails on that allegation.

Further, we find that complainant failed to establish that he was

discriminated or retaliated against due to the agency's actions alleged

in allegation (2). We find there is no evidence in the record that the

alleged incidents regarding complainant's ratings for the Senior System

Civilian Evaluation Report for the period of November 1, 2002 through

October 31, 2003, and the mandatory midpoint review for the period of

November 1, 2002 through March 10, 2003, occurred due to discriminatory

animus by management. In so finding, we note that S1 stated: (1) for

the marketing performance objective, complainant had not taken enough

action to meet the requirement and she suggested actions he could take for

more effective marketing; (2) for the planning and concluding leagues,

championships and special events, complainant needed to conduct a more

advanced planning for those programs and S1 recommended complainant

contact various experts on these programs.6 S1 also stated that her

annotation of a co-worker's name on complainant's performance standards

was not meant to minimize complainant's accomplishments, but was meant

to consider the related nature of the responsibilities of S1 and the

co-worker. S1 stated that she made her own determination regarding

complainant's performance on the evaluation, and the co-worker did not

have input on complainant's performance ratings. Regarding the mandatory

midpoint review, S1 stated that she was required to rate the branch

employees performance for the rating period as she had been the supervisor

for more than 90 days. S1 denied that complainant's EEO activity was

a factor in her determinations concerning his performance evaluation.

Investigative File (IF) at 159-161. In addition, the agency's Human

Resources Specialist stated that as S1 had been assigned as supervisor

for at least 120 days prior to the end of the rating period, she was

entitled to rate complainant's performance for the rating period ending

October 31, 2003. IF at 186-187. We find complainant has proffered no

evidence which demonstrates that the agency's articulated reasons were

more likely than not pretextual in nature.

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, we AFFIRM the agency's

final action.

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

_____5/08/07______________

Date

1 We note that complainant filed his appeal with the Commission on

December 30, 2005, prior to the date the agency issued its final action

(January 19, 2006). Although complainant's appeal was premature, we

will consider it timely for purposes of processing this appeal.

2 Due to a new data system, this case has been redesignated with the

above-referenced appeal number.

3 We note that the Administrative Judge and the agency's Motion for

Issuance of a Decision Without a Hearing incorrectly stated that the

evaluation period for complainant's mandatory midpoint Senior System

Civilian Evaluation Report began on November 1, 2003, when the actual

date was November 1, 2002.

4 On August 17, 2006, the agency submitted its Motion for a Decision

Without a Hearing to the Administrative Judge (AJ). The record indicates

that complainant was sent a copy of the agency's Motion on the day it

was submitted to the AJ. The AJ found that complainant failed to file

a Motion in response to the Agency's Motion. AJ's Decision at 1.

5 The Commission notes that the agency issued a final action on December

16, 2005, and subsequently issued a final action on January 19, 2006

as the initial decision failed to include the docket numbers of both of

complainant's allegations of discrimination.

6 The record indicates that complainant's performance objective for the

period November 1, 2002 through October 31, 2003 shows he was given the

highest rating, and he received a maximum overall performance rating of

Successful Level 1.

??

??

??

??

2

0120061838

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

6

0120061838