0120093623
08-17-2012
Stephen Hillyer, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior (Fish and Wildlife Service), Agency.
Stephen Hillyer,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior
(Fish and Wildlife Service),
Agency.
Appeal No. 0120093623
Hearing No. 541-2008-00228X
Agency No. FWA-07-0423
DECISION
On July 7, 2009, Complainant filed an appeal from the Agency's May 21, 2009 final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission accepts the appeal pursuant to
29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are: (1) whether the EEOC Administrative Judge's issuance of a decision without a hearing was appropriate; and (2) whether Complainant established that the Agency subjected him to hostile work environment harassment on the bases of disability and reprisal for prior protected EEO activity.
BACKGROUND1
At the time of events giving rise to this complaint, Complainant worked as a Biological Science Technician, GS-0404-05, at the Agency's National Fish Hatchery in Saratoga, Wyoming. According to Complainant's position description, he "assists with fish culture and hatchery management activities and with the Wyoming toad-rearing program." Complainant's supervisor was a Supervisory Fish Biologist (S1). Complainant's co-workers were a Fish Biologist (C1) and a Maintenance Mechanic (C2).2
On April 17, 2006, Complainant began his one-year temporary appointment with a not-to-exceed date of April 15, 2007. As a condition of his employment, Complainant had to reside in government quarters on the hatchery grounds. Throughout his employment, Complainant was dissatisfied with his government quarters for a variety of reasons. For example, there was a sewage backup in Complainant's basement during his first month of living there. In addition, Complainant felt that it was unfair that his house had only one bathroom while C1's house, for a family of four, had two bathrooms. Further, Complainant felt that it was unfair that he had to pay rent for his living quarters, which included storage space, but that S1 and C2 stored their personal items on hatchery grounds without paying rent. Moreover, Complainant wanted sliding doors for his bathtub so that he could bathe his dogs without getting water all over the bathroom. Finally, Complainant felt that the fence in his yard was inadequate to contain his dogs because they were small and were able to slip through. Complainant's dogs relieved themselves inside his house because he felt that he could not let them out into his yard. When Complainant's dogs escaped his yard, they would relieve themselves elsewhere on the hatchery grounds.
On January 22, 2007, S1 placed dog feces on Complainant's office chair. According to S1, Complainant was told numerous times to pick up his dog feces around the hatchery. S1 stated that, on that particular day, there were dog feces in front of the main hatchery entrance and Complainant walked over it numerous times, so he "just lost it and did the wrong thing." S1 said, "This was not done in any way to harass Complainant. I was simply angry at the moment about him not cleaning up after his dogs and made a bad choice."
On February 2, 2007, Complainant reported the dog feces incident to an ADR Coordinator/CORE Specialist3 (E1) in the Office of Diversity and Civil Rights (ODCR). Complainant wanted to resolve the differences he had with S1 through the ADR process. Complainant requested a face-to-face CORE meeting, but only received a conference call. According to Complainant, he was treated unfairly during the ADR process because he did not get a meeting, despite E1 telling him that a CORE facilitator was available.
From the very beginning of his appointment, Complainant felt that S1 singled him out and treated him unfairly. According to Complainant, S1 made him (but not C2) feed the toads on holiday weekends, denied his requests to take a Fish Health class and get other on-the-job training opportunities (offsite surveys, toad releases, etc.), denied his request to purchase uniform accessories, told him he filled out his timesheets incorrectly, and failed to communicate with him. In addition, Complainant felt it was unfair that S1 could take annual leave during the September to November spawning season, but that he and the other employees in the office were unable to do so. In response, S1 stated that feeding toads was not a part of C2's Maintenance Mechanic position description (although he would do so if asked), but that feeding toads was a part of Complainant's Biological Science Technician position description. In addition, S1 stated that Complainant took a Coldwater Fish class and that he had been scheduled for a Fish Health class but it started after his last day of employment. Moreover, S1 stated that employees themselves order uniforms through an online account, Complainant failed to include the proper codes on his timesheets, he communicated with Complainant in the same way as he did his other employees, and he could deny leave during times of heavy workload.
On March 7, 2007, S1 notified Complainant that his last day of employment was April 14, 2007. According to S1, Complainant's appointment was not renewed because he had killed three or four toads he was responsible for feeding and had caused damage to his government quarters. Complainant admitted that one toad had died, but denied responsibility; Complainant felt that he was unfairly blamed because the cause of death "is as yet unresolved" and because the toads he was responsible for "are older and more infirm than any other Wyoming toads on the planet." In addition, Complainant stated that S1 had promised him two years of work when he interviewed for the position.
S1 informed Complainant that he had to vacate his government quarters on his last day of employment. Complainant stated that he specifically told C2 that he was unable to dispose of the items left in his garage and that those items were to be considered garbage. Later, however, Complainant found that the items had been moved to his campsite. Complainant considered this harassment because his instructions were ignored. In response, S1 stated that he moved those items to the campsite because Complainant was supposed to have removed all his items, he could not tell what was trash and what was not, and he did not want to be accused of stealing anything. After Complainant moved out, the Agency charged him $3,966 for carpet replacement because of damage caused to the carpet by his dogs. Complainant felt that this charge was unfair because steam cleaning the carpet would remove the stains. In addition, Complainant felt that the carpet company unnecessary recommended replacing the carpet because it stood to profit from the recommendation.
Overall, Complainant felt that S1 harassed him because of his disability (30% military service-connected disability for left knee condition) and because of his February 2, 2007 contact with ODCR. Specifically, Complainant cited a statement that C1 allegedly made about how S1 felt restricted in whom he could hire for his position because Complainant was a disabled veteran and received additional points during the selection process. In addition, Complainant noted that some of the incidents occurred shortly after his ODCR contact.
On March 26, 2007, Complainant contacted an EEO Counselor. On August 14, 2007, Complainant filed an EEO complaint alleging that the Agency subjected him to hostile work environment harassment on the bases of disability (30% military service-connected disability for left knee condition) reprisal for prior protected EEO activity (February 2, 2007 ODCR contact) when:
1. On March 7, 2007, S1 notified him that the Agency would not renew his temporary appointment and that his last day of employment was April 14, 2007;
2. From April 2006 to April 2007, S1 required him, but not C2, to feed the toads on holiday weekends;
3. From April 2006 to April 2007, he received subpar government quarters;
4. From April 2006 to April 2007, S1 accused him of mishandling the toads;
5. From April 2006 to April 2007, S1 did not clearly communicate with him as he did with other employees;
6. From April 2006 to April 2007, the fencing to keep his dogs in his yard was inadequate;
7. From April 2006 to April 2007, he was required to pay rent for his living quarters, which included storage space, but S1 and C2 stored their personal property on the hatchery grounds;
8. From June 2006 to March 2007, S1 denied his requests for training;
9. In September 2006, S1 denied his request to purchase uniform accessories;
10. From September 2006 to November 2006, during spawning season, S1 did not allow him, C1, and C2 to take annual leave;
11. On January 22, 2007, S1 placed dog feces on his office chair;
12. From February 2007 to April 2007, his request for a CORE meeting was denied;
13. On February 12, 2007, S1 told him that he filled out his timesheets incorrectly;
14. On May 16, 2007, he was charged $3,966 for carpet replacement in his government quarters; and
15. On May 16, 2007, S1 moved items from his government quarters to his campsite.
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. Over Complainant's objections, the AJ granted the Agency's July 29, 2008 motion for a decision without a hearing and issued a decision without a hearing on May 12, 2009. 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.
In his decision, the AJ initially found that Complainant was not an individual with a disability. Next, the AJ found that Complainant did not engage in EEO activity until March 26, 2007 because his February 2, 2007 request to participate in the ADR process did not constitute protected activity. Further, the AJ found that only two incidents (14 and 15) occurred after Complainant engaged in EEO activity. Moreover, the AJ found that the unwelcome conduct alleged by Complainant was not sufficiently severe or pervasive to create an abusive working environment. Finally, the AJ found that the unwelcome conduct alleged by Complainant was not based on his disability or prior EEO activity because he failed to show that the legitimate, nondiscriminatory reasons articulated by the Agency were pretextual.
CONTENTIONS ON APPEAL
On appeal, Complainant contended that he required a hearing to properly present his case. Specifically, Complainant argued that the record was not adequately developed because it did not contain the following: (a) testimony from C1,4 E1, and a named eyewitness that would corroborate that the incidents occurred as he alleged; (b) testimony from his predecessor that would corroborate that he was treated differently; and (c) testimony from C1 about an alleged statement concerning his disabled veteran status in the context of hiring. In addition, Complainant argued that the AJ accepted S1's testimony and discounted his testimony. Further, Complainant argued that S1's placement of dog feces on his office chair was clearly harassment. Finally, Complainant argued that he is an individual with a disability and that his February 2, 2007 contact with the ODCR constituted EEO activity.
The Agency did not submit a statement or brief in opposition to Complainant's appeal.
ANALYSIS AND FINDINGS
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, � VI.B. (Nov. 9, 1999) (providing that both the AJ's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). 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 EEO MD-110, at Ch. 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").
AJ's Issuance of a Decision Without a Hearing
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.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the AJ must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing.
Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
After a careful review of the record, we find that the AJ's issuance of a decision without a hearing was appropriate. The record has been adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, he was given a comprehensive statement of the allegedly undisputed material facts, he was given the opportunity to respond, and he had the opportunity to engage in discovery. We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in his favor, as explained below. Therefore, we find that no genuine issues of material fact exist. While Complainant argued on appeal that the record was inadequately developed, we find that obtaining the additional testimony he cited would not help us determine whether the Agency's actions were based on his disability or prior EEO activity. Under these circumstances, we find that the AJ's issuance of a decision without a hearing was appropriate.
Hostile Work Environment Harassment
To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).
For purposes of this decision, we will assume, without so finding, that Complainant is an individual with a disability and that he engaged in EEO activity on February 2, 2007 when he contacted ODCR.
Upon review of the record, we find that Complainant failed to establish a claim of harassment. Specifically, we find that Complainant has presented insufficient evidence that the unwelcome conduct alleged was based on his disability or prior EEO activity. We find that the Agency articulated legitimate, nondiscriminatory reasons for its actions and that Complainant failed to show pretext.
Regarding incident 1, S1 testified that he decided not to renew Complainant's temporary appointment due to the deaths of the toads and issues with housing. While Complainant disputes the number of toads that died and whether he was personally responsible for causing their deaths, it is undisputed that at least one toad under Complainant's care died. We note that the record contains a November 2006 performance evaluation in which S1 rated Complainant "Minimally Successful" on a critical element related to toads and commented, "[Complainant] needs to improve his handling of the toads." While Complainant asserts that the housing issues did not arise until after February 2, 2007, it is undisputed that he caused damage to his government quarters.
Regarding incident 2, S1 testified that Complainant (but not C2) was required to feed the toads on holiday weekends because it was part of his position description as a Biological Science Technician and not part of C2's position description as a Maintenance Mechanic. The Biological Science Technician position description indicates that the primary duties are to assist "with fish culture and hatchery management activities and with the Wyoming toad-rearing program. In contrast, the Maintenance Mechanic position description indicates that the primary duties are to perform "a wide variety of technical maintenance tasks."
Regarding incident 8, S1 testified that Complainant did not attend the Fish Health training class because it began on April 16, 2007, which was after his last day of employment. The record reflects the following sequences of events: Complainant was enrolled in the Fish Health class with a start date of April 16, 2007; on March 7, 2007, S1 notified Complainant that his last day of employment was April 14, 2007; and on March 8, 2007, Complainant was dropped from the Fish Health Class.
Regarding incident 10, S1 testified that he is allowed to deny annual leave during heavy workloads. Complainant clarified that he was not denied leave, but merely wished to point out that there were two sets of rules - one for S1 and one for everyone else. While this may seem unfair, we find that S1 treated Complainant the same as he treated C1 and C2 with respect to allowing annual leave.
Regarding incident 11, S1 testified that he placed dog feces on Complainant's chair because he was angry at Complainant for not cleaning up after the dogs. While we find that S1's actions were highly inappropriate, we find no persuasive evidence that it was based on Complainant's disability or previous EEO activity. On the contrary, we find that it is more likely than not based on his frustration with feces from Complainant's dogs being left on the hatchery grounds. In so finding, we note that it is undisputed that Complainant's dogs would escape his fenced yard and relieve themselves on hatchery grounds. In addition, we note that this incident occurred before Complainant's February 2, 2007 contact with ODCR.
Regarding the remaining incidents, we find that they mostly concern Complainant's disagreement with how the Agency handles housing and ADR,5 or concern minor workplace disputes involving toad handling, supervisor-employee communications, and timesheets. Even assuming that the incidents occurred as alleged by Complainant, we find that there is no indication that they were based on his disability or prior EEO activity.
We note that that the federal anti-discrimination statues do not protect against unfair or unwise business decisions, mistakes, or administrative incompetence - only against decisions motivated by unlawful discriminatory animus. There is no evidence of such animus here. As evidence of disability discrimination, Complainant asserted that S1 felt restricted in hiring him because he received additional points during the selection process as a disabled veteran. Even if that were true, we find it insufficient to draw an inference that all of S1's actions towards Complainant, after having hired him, were motivated by disability discrimination. As evidence of reprisal discrimination, Complainant asserted that some of the incidents occurred shortly after he complained to ODCR on February 2, 2007 about S1's behavior. We note that most of the alleged incidents could not be motivated by retaliation because they occurred before February 2, 2007. While some incidents took place after February 2, 2007, there is no evidence that they occurred in retaliation for Complainant's February 2, 2007 contact.
Although Complainant testified to his belief that disability and reprisal were the reasons for the Agency's actions, we find that there is no evidence in the record, other than his bare assertions, to show that the Agency's actions were motivated by discriminatory animus. We note that when a party moves for a decision without a hearing, such as the Agency did here, the non-moving party's opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for hearing. See Celotex, 477 U.S. at 324. Accordingly, we find that Complainant has not established his claim of harassment.
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.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___8/17/12_______________
Date
1 This narrative is based on Complainant's statements in his formal complaint, his written response to the EEO Specialist's request for additional information, his affidavit, S1's affidavit, and his rebuttal to S1's affidavit.
2 S1, C1, and C2 were not disabled and had no prior EEO activity.
3 COnflict REsolution (CORE) is the Agency's Alternative Dispute Resolution (ADR) program designed to resolve workplace conflicts.
4 We note that the investigation included testimony from Complainant, S1, C1, and C2.
5 We note that Commission policy states that, "[n]othing said or done during attempts to resolve [a] complaint through ADR can be made the subject of an EEO complaint." EEOC Management Directive 110 for 29 C.F.R. Part 1614 (EEO-MD-110), 3-3 (November 9, 1999). Also, "an agency decision not to engage in ADR, or not to make ADR available for a particular case . . . cannot be made the subject of an EEO complaint." Id.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120093623
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120093623