01a43422
08-05-2005
Sammie L Springs, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Sammie L Springs v. Department of Veterans Affairs
01A43422
August 5, 2005
.
Sammie L Springs,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A43422
Agency No. 2004-0565-2002103458
Hearing No. 140-2003-08311X
DECISION
JURISDICTION
On January 15, 2004, complainant filed an appeal from the agency's final
order concerning his equal employment opportunity (EEO) complaint 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 the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. On appeal, complainant requests
that the Commission reverse the agency's acceptance and implementation
of an EEOC Administrative Judge's (AJ) finding of no discrimination.
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 order.
BACKGROUND
At the time of events giving rise to this complaint, complainant
was a Laundry Plant Manager at the Veterans Affairs Medical Center
in Fayetteville, North Carolina. Complainant stated that one of his
subordinates (E1) was insubordinate, and he recommended to his first
level supervisor (S1) (White, D.O.B. 11/22/48) that E1 be removed.
S1 stated that complainant submitted an evidence file along with his
proposed dismissal of E1. S1 stated that he submitted the documents to
the Office of Human Resources (HR) who told him that the evidence file
was �too weak for removal� and that it was necessary to take progressive
disciplinary action. As a result, E1 received a two-week suspension.
S1 explained that complainant's authority to issue disciplinary actions
is diminished if the action goes beyond an admonishment. S1 asserted that
the final authority for removal actions has to be made by the Director.
Complainant's second level supervisor (S2) (White, D.O.B. 1/31/65)
stated that complainant did not have the authority to remove employees.
He stated that HR did not approve of the removal and recommended a
two-week suspension. S2 stated that he agreed with HR's recommendation
and made the final decision to suspend E1 for two weeks.
Complainant stated that another of his employees (E2) went behind his
back to S1 to have his leave approved. S1 stated that the E2 needed his
leave approved quickly and his first-line supervisor (one of complainant's
subordinates) was not around and since complainant was not available,
he approved the leave. He said the procedure was to go through the chain
of command when requesting leave, but when there was an urgent need and
the supervisor was absent, he would approve the leave.
Complainant stated that S1confronted him in front of an employee about the
disapproval of E2's leave request. Complainant stated that he verbally
denied E2's leave request and E2 went to S1 and requested to have his
request approved which S1 approved. Complainant stated that S1 called
him into the office and asked him in front of E2 why he disapproved E2's
leave request. S1 stated that he did not recall the incident.
Complainant stated that one of his employees (E3) was under a disciplinary
action and wanted to use eight hours of administrative leave. He stated
that E3 went directly to S2 who approved his leave request. S2 stated
that E3 was in the process of being removed and under the agency policy he
was entitled to eight hours of administrative leave to prepare an appeal.
He stated that complainant was not in the office when he approved the
administrative leave. He asserted that complainant later told him that
the grant of the leave caused him a lack of coverage in the laundry.
S2 stated that he apologized to complainant for causing the shortage
and would take responsibility for any work that was not performed due
to the lack of staff.
Complainant stated that assignment of overtime to his subordinates was
his responsibility and not that of S1. S1 stated that he did solicit
volunteers to work overtime because there was a need for more laundry work
to be done at the end of the shift. He asserted that complainant was not
in the building at the time that he needed volunteers. He stated that he
has the authority and responsibility to recruit employees for overtime
work as needed but that most of the time he requests his supervisors to
solicit employees for overtime work.
Complainant stated that S1 undermined his position of leadership when he
falsely informed him that the Facility Director had approved an abeyance
period for removing E1. Complainant stated that during a meeting, the
Facility Director did not seem aware he had approved the abeyance period.
In his statement, S1 stated that an abeyance is when a removal action is
put into kind of a �limbo� for a year and during which time, if there
are any more disciplinary incidents, the removal goes into effect.
He stated that the Facility Director made the decision to place E1's
removal action in abeyance. S2 also stated that it was the Facility
Director's decision to place E1 in abeyance instead of removal.
On June 4, 2002, complainant contacted an EEO counselor and filed
a formal EEO complaint on July 11, 2002, alleging that the agency
discriminated against him on the bases of race (African-American) and age
(D.O.B. 5/19/42) by subjecting him to a hostile work environment when:
(1) on May 9, 2002, he became aware that a proposed removal he requested
for one of his subordinate employees (E1) was downgraded to a two-week
suspension without his consent;
(2) on May 10, 2002, his supervisor (S1) undermined his authority when
he approved annual leave for an employee (E2) without the approval from
the first-level supervisor (complainant's subordinate);
on May 17, 2002, S1 undermined his authority when he solicited
volunteers from his (complainant's) staff to work overtime without
prior consultation;
on May 20, 2002, S1 confronted him in front of E2 about the disapproval
of E2's leave;
on May 24, 2002, complainant's authority was undermined by his second
level supervisor (S2) when he approved leave for E3 without the consent
or approval of appropriate supervisory staff; and,
on June 26, 2002, S1 undermined his position of leadership when he
falsely informed him that the Facility director had approved an abeyance
period for disciplinary action against E1.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination on the bases of race or age. Further, the AJ
found that complainant failed to show that he was subjected to a hostile
work environment.
The AJ adopted the agency's finding of fact contained in its Motion for
Dismissal or in the Alternative Decision Without a Hearing. The AJ
concluded that the agency articulated legitimate, nondiscriminatory
reasons for its actions. For example, the AJ found that the agency
stated that complainant did not have the authority to remove employees
and could only recommend removal.
The AJ found that complainant did not establish that more likely
than not, the agency's articulated reasons were a pretext to mask
unlawful discrimination. In reaching this conclusion, the AJ found that
complainant failed to proffer any substantive evidence which supported
or corroborates his allegations of race or age discrimination.
With respect to his claim of a hostile work environment, the AJ found
that the incidents were neither severe nor pervasive. Specifically,
the AJ found that complainant's complaint merely highlighted incidents
of which he disapproved and found to be a challenge to his leadership
role in the laundry.
FINAL AGENCY ACTION
The agency's final order accepted the AJ's finding that complainant was
not discriminated against or subjected to a hostile work environment on
the bases of his race or age. Neither the complainant nor the agency
makes any contentions on appeal.
STANDARD OF REVIEW
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 AJ'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�).
ANALYSIS AND FINDINGS
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 in dispute.
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 Corp. 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, a
hearing is required. In the context of an administrative proceeding,
an AJ may properly consider issuing a decision without a hearing only
after determining that the record has been adequately developed for
summary disposition. See Petty v. Department of Defense, EEC Appeal
No. 01A24206 (July 11, 2003).
Complainant's complaint involves six incidents comprising a claim of
hostile work environment harassment based upon race and age. The gravamen
of his complaint is that his first and second line supervisors were
trying to undermine his authority. In Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of
Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment
is actionable if it is sufficiently severe or pervasive to alter
the conditions of the complainant's employment. The Court explained
that an "objectively hostile or abusive work environment [is created
when] a reasonable person would find [it] hostile or abusive:" and the
complainant subjectively perceives it as such. Harris, supra at 21-22.
Thus, not all claims of harassment are actionable. Where a complaint
does not challenge an agency action or inaction regarding a specific
term, condition or privilege of employment, a claim of harassment is
actionable only if, allegedly, the harassment to which the complainant
has been subjected was sufficiently severe or pervasive to alter the
conditions of the complainant's employment.
Here, the Commission finds that the AJ's issuance of a decision without
a hearing was appropriate, as no genuine dispute of material fact
exists with respect to complainant's contention that he was subjected
to a hostile work environment. In reaching this conclusion, we find
that complainant failed to sufficiently rebut the agency's explanation
for the incidents involving E1 and E3 and the overtime. Thus the only
incident remaining involves E2, and we find that even assuming for the
sake of argument that S1 was trying to undermine complainant's authority,
the incidents involved are insufficiently severe and insufficiently
pervasive to render the work environment hostile as a matter of law.
Consequently, the agency's final order is hereby AFFIRMED.
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
August 5, 2005
__________________
Date