0120102054
03-07-2012
Stanley D. Wells, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Stanley D. Wells,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120102054
Hearing No. 430-2009-00135X
Agency No. 086626202101
DECISION
On April 12, 2010, Complainant filed an appeal from the Agency’s March
2, 2010, final order 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 Commission deems the appeal timely and accepts it for
de novo review 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 worked
as a Mobile Equipment Servicer at the Navy Exchange Service Command,
in Virginia Beach, Virginia. On June 25, 2008, Complainant filed an EEO
complaint alleging that the Agency discriminated against him on the basis
of race (Black) when: (1) Between February 8, 2008 and April 21, 2008,
the former Supervisory Sales Clerk (S1) subjected him to a hostile work
environment; (2) on April 21, 2008, the General Manager (S2) placed him
on suspension without pay pending disciplinary action; and (3) on June
25, 2008, S2 terminated his employment as a Mobile Equipment Servicer.
At the conclusion of the investigation, the Agency provided Complainant
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. When Complainant did not object, the AJ
assigned to the case granted the Agency’s May 28, 2009, motion for a
decision without a hearing and issued a decision without a hearing on
January 15, 2010. The Agency subsequently issued a final order adopting
the AJ’s finding that Complainant failed to prove that the Agency
subjected him to discrimination as alleged.1
UNDISPUTED FACTS
During the relevant time-frame, Complainant had worked for the Agency for
over ten years. In February 2008, Complainant complained in writing that
his immediate supervisor, S1, forced him to carry heavy items contrary
to medical advice, forced him to complete his work off the clock,
threatened him with termination, and treated him like an animal when
he stated that he was tired of “hunting for [Complainant].” At this
time, Complainant did not assert that his race was a motivating factor
in S1’s conduct toward him. Complainant suffered from a shoulder
impairment, for which he underwent corrective surgery in February 2008.
Complainant remained out of work from February 18 until late March 2008.
Upon his return to work, on or about April 8, 2008, Complainant and
other employees (including S1) were interviewed as part of an ongoing
administrative investigation. The Agency initiated this investigation
based on information received from an associate regarding merchandise
theft, unethical treatment of associates, mechanics overcharging
customers, consumption of alcohol on Agency property and the illegal
issuance of state inspection stickers. During his interview, Complainant
admitted to taking a tire and some Armor All Tire Protector. The Agency
has a written policy which mandates the termination of employees who
take Agency merchandise without paying for it, regardless of the value
of the merchandise. Based on these interviews, several employees,
including Complainant and S1, were placed on emergency suspension.
On May 8, 2008, (after he was placed on suspension) Complainant, for
the first time notified an Agency management official of race-based
harassment which included the allegation that S1 engaged in racial slurs.
Complainant alleged that S1 stated to another co-worker that he was
“too busy eating monkey meat.” Complainant also alleged that S1
referred to him as a “nigger” on several occasions prior to his
sick leave. Complainant admitted that the only person he notified of
S1’s use of racial slurs was a co-worker/union representative (U1).
U1 did not advise any management official of Complainant’s allegations
regarding S1’s use of racial slurs.
The Agency concluded from the investigation that other employees,
in addition to S1 and Complainant, had been involved in theft of Navy
Exchange merchandise. Those employees included two Caucasian employees
and one Asian employee. All employees who stole Agency property were
suspended and then terminated.
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.
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.
The AJ concluded that Complainant failed to establish a prima facie
case of discrimination with respect to his suspension and termination.
Specifically, the AJ noted that the undisputed evidence of record
established that Complainant stole merchandise from the Agency.
In addition, the AJ noted that the undisputed evidence established that
the Agency enforced its policy uniformly. Every employee, whether
supervisor or line staff, under investigation, found to have stolen
Agency merchandise, had their employment terminated. Each person was
disciplined in the same way for the same infraction.
The AJ also concluded that the evidence presented failed to establish
a prima facie case of harassment. Specifically, the AJ concluded
that Complainant failed to apprise anyone in Agency management of the
alleged racial harassment, despite being aware of the policy against
harassment, including how to report a claim to management officials.
Complainant admitted to telling U1 about the alleged harassment. However,
the undisputed record shows that neither Complainant nor U1 approached
Agency management with the information until after both Complainant and S1
were placed on suspension. Since the Agency terminated S1’s employment,
the AJ concluded that there was no likelihood that Complainant would again
be subjected to the alleged hostile environment of which he complained.
Accordingly, the AJ concluded that the harassment claim was moot.
After a careful review of the record, we find that summary judgment
was appropriate because no genuine dispute of material fact exists.
Specifically, we agree with the AJ in finding the record devoid
of evidence to refute management’s articulated legitimate,
non-discriminatory explanation for Complainant’s suspension and
termination. Moreover, we find the record devoid of evidence to support a
finding that Complainant’s race was a motivating factor in the decision
to suspend and terminate Complainant.
We also agree with the AJ in concluding that Complainant’s harassment
claim is moot. The regulation set forth at 29 C.F.R. § 1614.107(a)(5)
provides for the dismissal of a complaint when the issues raised therein
are moot. To determine whether the issues raised in complainant's
complaint are moot, the fact-finder must ascertain whether (1) it can
be said with assurance that there is no reasonable expectation that
the alleged violation will recur; and (2) interim relief or events
have completely and irrevocably eradicated the effects of the alleged
discrimination. See County of Los Angeles v. Davis, 440 U.S. 625, 631
(1979); Kuo v. Dep’t of the Navy, EEOC Request No. 05970343 (July 10,
1998). When such circumstances exist, no relief is available and no need
for a determination of the rights of the parties is presented. The record
shows that Complainant sought damages related solely to his suspension
and termination such as reinstatement and back pay.2 The record also
supports the conclusion that there is no reasonable expectation that the
alleged harassment will recur, given the fact that both S1 and Complainant
have been terminated. Accordingly, we agree with the AJ’s conclusion
that the harassment claim is moot.
CONCLUSION
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 order which implements the AJ’s summary judgment
decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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:
March
7,
2012
______________________________
__________________
Carlton M. Hadden, Director Date
Office of Federal Operations
1 Complainant does not raise any assertions on appeal.
2 Complainant did not seek pain and suffering compensatory damages
related to his harassment claim.
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01-2010-2054
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013