0120090384
08-12-2011
Warren E. Drewrey, Complainant, v. Hillary Rodham Clinton, Secretary, Department of State, Agency.
Warren E. Drewrey,
Complainant,
v.
Hillary Rodham Clinton,
Secretary,
Department of State,
Agency.
Appeal No. 0120090384
Hearing No. 570-2008-00195X
Agency No. DOS-F-094-06
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s September 30, 2008 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. 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 Management Analyst at the Agency’s Management Support Division
of the Bureau of Overseas Building Operations in Roslyn, Virginia.
On September 7, 2006, Complainant filed an EEO complaint alleging that the
Agency subjected him to a hostile work environment on the bases of race
(African-American) and in reprisal for prior protected EEO activity when:
1. His request to attend the 2006 Blacks in Government (BIG) conference
was denied;
2. He received a Letter of Admonishment stemming from an All-Hands
Meeting on or about June 21, 2006; and
3. His request to attend a GSA conference in July or August 2004 was
denied.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation (ROI) 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
assigned to the case granted the Agency’s motion and issued a decision
without a hearing on September 16, 2008.
Initially, the AJ assumed arguendo that Complainant had established
a prima facie case of discrimination and found that the Agency had
articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, as to claim (1), Complainant’s supervisor (S1) affirmed
that he solicited requests from employees who wanted to attend the
BIG conference and requested that they submit a note explaining why
they wanted to attend, how the conference would benefit them, how
the conference would benefit the Agency, what sessions they planned
to attend, and how their attendance would improve the functioning of
the office. Complainant and other employees responded; however, S1 did
not believe any of their statements were responsive to his request.
S1 asked those interested to re-submit with the justification he
previously sought. Complainant failed to submit a second request.
S1 allowed those who timely responded to attend the conference.
Complainant requested administrative leave to attend at his own expense.
S1 denied Complainant’s request for administrative leave, but allowed
Complainant to use annual leave to attend the conference.
Regarding claim (2), on June 21, 2006, Complainant mentioned to
co-workers leaving a staff meeting that he had to go take a drug test
for the fifth time. Complainant remarked, “How ironic is that?”
Complainant explained his comment was in reference to the fact that he
had already been tested numerous times and his selection for testing did
not seem to be random, as required by Agency policy. Two days later, S1
gave Complainant a Letter of Admonishment for his comments. S1 quoted
Complainant as saying, “I am leaving. I have a random drug test to
attend to. My fifth random drug test. You are probably responsible for
that.” S1 believed the comment was directed at him. In response to
the letter, Complainant explained to S1 that he was not talking to him
and tore up the letter. S1 later provided Complainant with a second
copy of the letter at his request, but did not place one in his official
personnel file. Finally, as to claim (3), S1 maintained that he denied
Complainant’s request to attend a GSA conference regarding purchasing
and travel card matters because it was not related to his position duties.
The AJ concluded that that Complainant had presented no evidence that
the Agency’s reasons for its actions were pretextual. Thus, the AJ
found that Complainant had not been discriminated or retaliated against
as alleged. Further, the AJ determined that the Agency’s actions
were not sufficiently severe or pervasive to constitute a hostile work
environment. As a result, the AJ found that Complainant had not been
subjected to a hostile work environment. The Agency subsequently issued
a final order adopting the AJ’s decision.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that material facts are in dispute
requiring a hearing. Specifically, Complainant alleges that the AJ
failed to take into account the pervasive extent and history of the
harassment that he has experienced. Further, Complainant argues that
the incidents alleged were not common workplace occurrences; rather, they
were incidents in a larger pattern of harassment. Finally, Complainant
contends that the fact that the AJ found that he failed to prove pretext
demonstrates that the AJ failed to take into account all of the actions
that were taken against him. Accordingly, Complainant requests that
the Commission reverse the final order.
ANALYSIS AND FINDINGS
Decision without a Hearing
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, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Upon review of the record, the Commission determines that there are no
genuine issues of material fact or any credibility issues which required
a hearing and therefore the AJ's issuance of a decision without a hearing
was appropriate. The Commission concludes that, even assuming all facts
in favor of Complainant, a reasonable fact finder could not find in his
favor, as explained below. Therefore, no genuine issues of material
fact exist. Under these circumstances, the Commission finds that the
AJ's issuance of a decision without a hearing was appropriate.
Hostile Work Environment
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, religion or prior
EEO activity is unlawful, if it is sufficiently patterned or pervasive.
Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998)
(citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC
Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 8,
1994). In determining that a working environment is hostile, factors
to consider are the frequency of the alleged discriminatory conduct, its
severity, whether it is physically threatening or humiliating, and if it
unreasonably interferes with an employee's work performance. See Harris
v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance
at 6. The Supreme Court has stated that: “Conduct that is not severe
or pervasive enough to create an objectively hostile work environment -
an environment that a reasonable person would find hostile or abusive -
is beyond Title VII's purview.” Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile environment harassment, Complainant
must show that: (1) he belongs to 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 his 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. See Henson v. City of Dundee, 682 F.2d 897
(11th Cir. 1982). The harasser's conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim's circumstances.
Enforcement Guidance at 6.
Upon review, the Commission agrees with the AJ’s findings and
conclusions. Construing the evidence in the light most favorable to
Complainant, the Commission concludes that Complainant did not prove that
he was subjected to conduct sufficiently severe or pervasive to create
a hostile work environment and that he also failed to prove that the
Agency’s actions were unlawfully motivated by his protected classes.
Even assuming that the alleged incidents would be sufficiently severe
or pervasive to constitute a hostile work environment, there is still
no evidence that any of them were motivated by discriminatory animus.
While Complainant has cited various incidents where Agency management
took actions that were either adverse or disruptive to him, the Commission
finds that Complainant failed to show that these incidents were motivated
by unlawful discrimination or retaliation. Further, to the extent that
Complainant is alleging disparate treatment with respect to the Agency’s
actions in this matter, the Commission finds that he has not proffered
evidence from which a reasonable fact-finder could conclude that the
Agency's reasons for its actions were a pretext for discrimination.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the Agency's final order,
because the Administrative Judge’s issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred.
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 (Nov. 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
August 12, 2011
Date
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0120090384
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090384