0120090490
07-02-2009
Bahri L. Wallace, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Bahri L. Wallace,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120090490
Hearing No. 570200800158X
Agency No. HS07TSA001072
DECISION
On October 28, 2008, complainant filed an appeal from the agency's October
1, 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., and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal 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 worked
as a Lead Transportation Security Officer (LTSO), SV-1802-D, for the
Transportation Security Administration (TSA), at the Baltimore-Washington
International Airport in Baltimore, Maryland. Complainant is considered
an "emergency" employee. This means that complainant is an essential
employee and is required to report to work on inclement weather days,
or to provide a doctor's note for his absence in order to not be placed
on Absent without Leave (AWOL) status.
Complainant alleged that on December 14, 2006, he explained to his
supervisor (S1) that he needed to go in for minor surgery the following
day for an off-duty injury, and that he believed he had 11.25 hours of
leave available at that time. Complainant alleged that S1 would not grant
him leave, stated that he had already used 8 hours of leave during that
pay period, and informed him that he would need to speak with the Security
Manager (SM). Complainant subsequently asked for Leave without Pay (LWOP)
instead, and S1 denied that as well. Despite this, complainant left work
and was subsequently placed on AWOL status. Complainant was later given
the paperwork to convert his AWOL to LWOP.
S1 countered that on December 15, 2006, complainant requested leave for
that same day. S1 denied complainant the leave and explained that it
was necessary for him to go through the pre-approval process for such a
request, as it is required that LWOP be requested in advance. S1 also
told him to speak with the SM about LWOP. S1 asserted that complainant
never spoke to SM as directed, and as a result, she denied the leave
once again. Complainant was placed on AWOL, which was eventually changed
to LWOP.
On March 17, 2007, complainant did not report to work due to
illness. Complainant stated that the weather was fine when he called
in, but shortly after it began to sleet and the agency declared
it an inclement weather day. On the following day, March 18, 2007,
complainant's second-line supervisor (S2) requested that complainant
go home and return with a doctor's note because he did not report to
work on an inclement weather day. Complainant acknowledged that it was
TSA's policy that "emergency" employees present a doctor's note when
absent on inclement weather days. However, complainant was unable to
obtain a doctor's appointment until March 19, 2007, and as a result,
he was placed in AWOL status. Complainant asserted that by the time
he was able to retrieve a doctor's note, it was too late to return to
work. Complainant was not scheduled to work again until March 22, 2007,
which is when he provided S2 with the requested doctor's note.
On March 19, 2007, complainant contacted the Office of Civil Rights
alleging that he was subjected to unlawful discrimination. On March 24,
2007, complainant was issued a Letter of Counseling for an incident that
arose when he allowed a female Transportation Security Officer (TSO)
to rub his head and touch his hair. This memorandum was not a formal
disciplinary action.
Complainant further alleged that on March 31, 2007, S2 informed him
that he was required to submit a leave request for LWOP for his absence
on March 18, 2007. Complainant stated that he did not believe that he
was being treated fairly because he did not volunteer to leave work,
and he was under the impression that he would not be required to use
his own leave in this instance.
Complainant also stated that on June 3, 2007, another TSO informed him
that he was aware of complainant's previous EEO activity. Complainant
alleged that the TSO also commented on his EEO activity as he was walking
into the department stating that, "[Complainant] is going to buy lunch for
everyone, 'cuz he is going to win his EEO complaint." The TSO countered
that he did not recall making this statement.
On April 13, 2007, complainant filed an EEO complaint alleging that he
was subjected to harassment/hostile work environment on the bases of race
(African-American), sex (male), age (DOB: 11/6/1961), and in reprisal
for prior protected EEO activity under Title VII when:
1. On December 15, 2006, he was denied leave for a doctor's appointment;
2. On March 18, 2007, he was told by his supervisor to leave work and
not to return until he had a doctor's note;
3. On March 19, 2007, he was charged with eight hours of Absent Without
Leave (AWOL), which was later changed to Leave Without Pay (LWOP);
4. On March 24, 2007, he was issued a Letter of Counseling;
5. On March 31, 2007, a manager requested a leave request form to cover
the day he was sent home; and
6. On June 3, 2007, he learned from another Transportation Security
Officer (TSO) that an Assistant Federal Security Director informed
another TSO that complainant filed an EEO complaint.
At the conclusion of the investigation, complainant was provided 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. However, when complainant did not object, the
AJ assigned to the case granted the agency's July 22, 2008 motion for
a decision without a hearing. On September 5, 2008, the AJ issued a
decision without a hearing in favor of the agency.
In his decision, the AJ found that complainant did not establish a
prima facie case of harassment because he did not demonstrate that he
was subjected to the type of severe and/or pervasive behavior required
to trigger a violation of Title VII or the ADEA. The AJ found that the
six incidents listed above, examined either in isolation or in concert,
did not constitute "objectively unreasonable" behavior. The AJ also noted
that even assuming, arguendo, that this behavior could be construed as
severe and/or pervasive, complainant did not allege specific facts which
created the inference that he was targeted because of his membership in
any protected group.
The AJ further noted that, although he believed management may have
erred in judgment when they sent complainant home and requested he
provide both medical documentation and leave slips to cover his absences
on March 17-18, 2007, he found this evidence alone insufficient to
create an inference of discriminatory animus. On October 1, 2008, the
agency subsequently issued a final order adopting the AJ's finding that
complainant failed to prove that he was subjected to discrimination as
alleged.
ANALYSIS AND FINDINGS
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 administrative judge'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").
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. 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 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
administrative judge 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
administrative judge 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 an opportunity to respond to the
motion, and he was given a comprehensive statement of undisputed facts.
Further, even if we assume all facts in favor of complainant, a reasonable
fact finder could not find in complainant's favor, as explained below.
Therefore, no genuine issues of material fact exist, and the AJ's grant
of summary judgment was appropriate.
Complainant alleges that he was discriminated against and subjected to a
hostile work environment on the bases of race, sex, age in reprisal for
prior protected EEO activity. To prevail in a disparate treatment claim
such as this, complainant must satisfy the three-part evidentiary scheme
fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Complainant must initially establish a prima
facie case by demonstrating that he or she was subjected to an adverse
employment action under circumstances that would support an inference
of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576
(1978). Proof of a prima facie case will vary depending on the facts of
the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden
then shifts to the agency to articulate a legitimate, nondiscriminatory
reason for its actions. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation is
pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
To establish a claim of harassment based on race, sex, disability, age,
or reprisal, complainant must show that: (1) he is a member of the
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 the statutorily
protected class; and (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. Humphrey v. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11. 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 (March 8, 1994).
Further, the incidents must have been "sufficiently severe and 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); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75
(1998). In the case of harassment by a supervisor, complainant must
also show that there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
In the instant case, assuming, arguendo, that complainant established
a prima facie case of race, sex, age, and reprisal discrimination,
the agency articulated legitimate, nondiscriminatory reasons for its
actions. Specifically, the agency asserted that complainant was denied
leave on December 15, 2006, because he did not follow the proper protocol
in order to be excused for his doctor's appointment. Additionally, the
agency asserted that complainant was told to leave work and not return
until he had a doctor's note because agency policy requires an emergency
TSO to provide a doctor's note when unable to report to work on inclement
weather days. The agency asserted that complainant was placed on AWOL and
LWOP because he failed to show up for work on an inclement weather day
and failed to provide a doctor's note for that day. The agency further
articulated that complainant was issued a Letter of Counseling to remind
him of the type of conduct that is considered unprofessional. The agency
asserted that this letter was not a disciplinary action, but simply
a means of putting complainant on notice for unacceptable work-place
behavior. Further, the agency stated that complainant was asked to submit
a leave request form because agency policy requires an employee to submit
a leave request form, even if the employee is sent home by his supervisor.
Finally, the TSO, who purportedly mentioned complainant's EEO activity,
did not recall making any comments about complainant's EEO activity,
and only assumed complainant engaged in EEO activity because an EEO
Counselor called looking for complainant.
Complainant must now establish, by a preponderance of the evidence,
that the agency's articulated legitimate, nondiscriminatory reasons were
pretext for discrimination. The record supports the agency's contention
that the denial of leave for complainant's doctor's appointment, the
requirement to present a doctor's note for his absence, and the request
to submit a leave request form were in conformance with agency policy.
The record also reflects that three other employees called out sick on
the same date as complainant, and all were required to present doctor's
notes. Two of those employees brought in doctor's notes, and the one
who did not was also placed on AWOL. Further, the record reflects that
the Letter of Counseling complainant received was a reminder of what
conduct was considered unprofessional, not a disciplinary action. The
non-management official who allegedly made a comment about complainant's
EEO activity merely assumed that complainant engaged in prior EEO activity
when a call was made to his department requesting information regarding
complainant, and we find that this isolated incident was not sufficiently
severe or pervasive to constitute harassment. We find that there is no
evidence to support a finding that the agency acted with discriminatory
or retaliatory animus. Therefore, we find that complainant failed to
establish that the agency's legitimate, nondiscriminatory reasons were
pretext for discrimination, or that he was subjected to a hostile work
environment.
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 (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
July 2, 2009
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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