0120070033
04-23-2009
Afendi Ziad, Complainant, v. Gary Locke, Secretary, Department of Commerce, Agency.
Afendi Ziad,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce,
Agency.
Appeal No. 0120070033
Hearing No. 100-2005-00522X
Agency No. 04-56-18
DECISION
Complainant filed an appeal with the Commission from the August 29,
2006 agency decision which implemented the August 11, 2006 decision of
the EEOC Administrative Judge (AJ) who found no discrimination.
Complainant alleges 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. Specifically, complainant, a supervisory legal assistant (SLA)
alleged that the agency discriminated against him on the bases of race
(African American), religion (Muslim), national origin (Ethiopian),
sex (male), and in retaliation for participating as a witness in a
discrimination complaint when: (1) he was subjected to a hostile work
environment when the following occurred: (a) complainant was not provided
with enough training for his position; (b) complainant was excluded
from team meetings concerning his work; (c) complainant's supervisor
over-monitored his performance and interfered with his work and his staff;
(d) complainant's supervisor withheld information vital to the performance
of his work; (e) complainant's supervisor treated him less favorably
and with less respect than the other SLA (Person A); (f) December 2003,
January 21, 2004, and February 4, 2004, complainant's supervisor prayed
for or with him and provided him with unwanted religious literature and
remarks about religion; (g) after receiving a performance evaluation of
"unsatisfactory," complainant's supervisor placed him on a performance
improvement plan (PIP), unjustifiably criticized his work, changed his
work schedule and gave him assignments outside his normal work; and (2)
on November 28, 2003, complainant received a performance evaluation of
'unsatisfactory." 1
At the conclusion of the investigation, complainant was provided a
copy of the investigative file and requested a hearing before an AJ.
The AJ issued a decision without a hearing (summary judgment) finding
no discrimination.
The AJ concluded that complainant failed to rebut the agency's articulated
legitimate, nondiscriminatory reasons for its actions and that the
agency's actions, whether considered individually or collectively,
did not constitute a hostile work environment.
Regarding training (claim 1a), the AJ noted that it was not disputed,
and complainant's supervisor stated, that complainant was not promised
any special training upon his hiring and, also, that complainant was sent
to numerous training sessions at the Trademark Trial and Appeals Board
(TTAB). The AJ also noted that complainant did not indicate what other
training he should have received.
Regarding complainant's claims of being excluded from meetings and the
withholding of information from him (claims 1b and 1d), the AJ noted
that complainant's supervisor stated that she addressed any concerns that
complainant brought to her attention and that when the other SLA (Person
A) brought any concerns to her that she believed complainant should
know (or if complainant was not present at a meeting), she would inform
complainant or have Person A provide the information to complainant.
Concerning complainant's exclusion from meetings in 2003 and 2004, the AJ
also noted that complainant acknowledged having later received information
about the interviewing of candidates and the dissolution of work teams
and that he presented no evidence that he was harmed by being excluded
from the meetings or that he was excluded for a discriminatory reason.
Regarding complainant's claim (claim 1c) that his performance was overly
scrutinized and the scrutiny interfered with his work and his staff, the
AJ noted that complainant's supervisor stated that she sent electronic
mail to complainant's staff as well as to Person A directly when she
needed to. The AJ also noted that complainant's supervisor stated
that she monitored complainant's work and that of his staff because she
discovered that complainant and his staff made mistakes which were not
promptly corrected. The AJ also noted that complainant's supervisor
stated that complainant was not promptly following up with his staff
on corrections and that, as a result, she had to send electronic mail
directly to complainant's staff. The AJ noted further that complainant's
supervisor explained that, as the concurring supervisor, she edited
complainant's narratives in the performance evaluations of his staff
so as to ensure that complainant's narratives supported the evaluations
which she wrote as the concurring supervisor.
Regarding complainant's claim that he was being treated with less respect
than Person A (claim 1e), the AJ noted that complainant's supervisor
stated that she treated complainant and Person A with the same amount
of respect. The AJ also noted that complainant's supervisor stated
that Person A had worked in TTAB longer than complainant had, that
she had more experience, that she participated more at staff meetings
than complainant, that she had good insight into problems and presented
good ideas and, also, that Person A performed better than complainant in
providing information, addressing problems, distributing work assignments,
coaching staff members, communicating with staff when they made mistakes,
and following through when Person A's staff needed to make corrections.
Regarding complainant's claim about prayer (claim 1f), the AJ stated
that complainant's supervisor stated that she played religious music in
her office; that she gave complainant and his co-workers a booklet on
Christianity; and that on one occasion she told complainant that she would
pray for his mother when complainant told her that his mother was ill.
Regarding complainant's unsatisfactory performance evaluation and
being placed on a PIP (claims 1g, 2), the AJ noted that complainant's
supervisor stated that she had given complainant a satisfactory rating in
the previous two years because complainant considered complainant to be
in the learning process but by the third year, it became apparent to her
that complainant was having performance problems. The AJ also noted that
complainant's supervisor stated that in complainant's performance review
and verbally throughout the year, she informed complainant that he needed
to improve his performance in several areas and that the supervisor had
over 40 instances of complainant's deficient performance. The AJ noted
that complainant's supervisor stated that complainant was placed on the
PIP so that he could improve his performance and succeed on his job.
Regarding complainant's claim of a hostile work environment, the AJ
concluded that the agency provided explanations for its actions which
complainant failed to rebut and, further, that complainant failed to state
a claim of harassment because the alleged conduct was not sufficiently
severe or pervasive so as to alter the conditions of complainant's
employment. The AJ also noted that complainant failed to show that
any of the claimed conduct was based on a prohibited factor and, also,
that complainant's claim that his supervisor did not like him from the
day he started was not linked to a protected basis or retaliatory.
The Commission's regulations allow an AJ to issue a decision without
a hearing when the AJ 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. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Finally, an AJ should not rule in favor of one party without holding a
hearing unless the AJ 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).
The courts have been clear that summary judgment is not to be used as
a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st
Cir. 1975). The Commission has noted that when a party submits an
affidavit and credibility is at issue, "there is a need for strident
cross-examination and summary judgment on such evidence is improper."
Pedersen v. Department of Justice, EEOC Request No. 05940339 (February
24, 1995).
An AJ's decision to issue a decision without a hearing pursuant to 29
C.F.R. � 1614.109(g) is reviewed de novo.
After review of this matter, we find that the AJ's grant of summary
judgment was appropriate because no genuine issue of material fact
exists. The agency articulated legitimate, nondiscriminatory reasons
for its actions and complainant failed to show that he was discriminated
against on any basis, retaliated against, or subjected to a hostile
work environment based on religion. Moreover, construing the evidence
in the light most favorable to complainant, complainant failed to
show by a preponderance of the evidence that the agency's reasons for
its actions were pretextual and motivated by discriminatory animus.
At all times, the ultimate burden of persuasion remains with complainant
to demonstrate by a preponderance of the evidence that the agency's
reasons were pretextual or motivated by intentional discrimination.
Complainant failed to carry this burden.
The agency's finding of no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
April 23, 2009
__________________
Date
1 In his opposition to the agency's motion for summary judgment,
complainant stated that he was withdrawing race as a basis and, also,
his claim of a hostile work environment. Although complainant stated that
a hostile work environment was not at issue, he also specifically stated
that he continued to rely on his supervisor's religious activities as one
of the elements of harassment underlying his discrimination complaint.
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0120070033
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013