Douglas Diggs, Complainant,v.Carlos M. Gutierrez, Secretary, Department of Commerce, Agency.

Equal Employment Opportunity CommissionAug 20, 2009
0120090046 (E.E.O.C. Aug. 20, 2009)

0120090046

08-20-2009

Douglas Diggs, Complainant, v. Carlos M. Gutierrez, Secretary, Department of Commerce, Agency.


Douglas Diggs,

Complainant,

v.

Carlos M. Gutierrez,

Secretary,

Department of Commerce,

Agency.

Appeal No. 0120090046

Agency No. 085610

DECISION

On September 30, 2008, complainant filed an appeal from the agency's

August 29, 2008 final decision 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 appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).

For the following reasons, the Commission AFFIRMS the agency's final

decision.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked

as a probationary Materials Handler at the agency's Newington Warehouse

in Alexandria, Virginia. On December 5, 2007, complainant filed an

EEO complaint alleging that he was discriminated against on the bases

of his race (Black) and in reprisal for prior protected EEO activity

when he was subjected to a hostile work environment from November 27,

2006 to October 11, 2007, leading to his termination from the position

of Materials Handler on October 12, 2007. Complainant alleged that he

was subject to a hostile work environment based upon statements made by

a fellow co-worker (CW).

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). When complainant

did not request a hearing within the time frame provided in 29 C.F.R. �

1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �

1614.110(b). The agency's decision concluded that complainant failed

to prove that he was subjected to discrimination as alleged.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant

to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo

review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management

Directive 110, Chapter 9, � VI.A. (November 9, 1999) (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").

Harassment of an employee that would not occur but for the employee's

race, color, sex, national origin, age, disability, or religion is

unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).

A single incident or group of isolated incidents will not be regarded

as discriminatory harassment unless the conduct is severe. Walker

v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the

harassment is sufficiently severe to trigger a violation of Title VII

[and the Rehabilitation Act] must be determined by looking at all the

circumstances, including the frequency of the discriminatory conduct,

its severity, whether it is physically threatening or humiliating, or

a mere offensive utterance, and whether it unreasonably interferes with

an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17

(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 of 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.

An employer is subject to vicarious liability for harassment when it

is "created by a supervisor with immediate (or successively higher)

authority over the employee." Burlington Industries, Inc., v. Ellerth,

524 U.S. 724, 118 S.Ct. 2257, 2270 (1998); Faragher v. City of Boca

Raton, 524 U.S. 775, 118 S.Ct. 2275, 2292-93 (1998). When, as in the

instant case, the harassment does not result in a tangible employment

action being taken against the employee, or when the alleged harasser

is not a supervisor, the employer may raise an affirmative defense

to liability. The agency can meet this defense, which is subject to

proof by a preponderance of the evidence, by demonstrating: (a) that it

exercised reasonable care to prevent and correct promptly any harassing

behavior; and (b) that appellant unreasonably failed to take advantage

of any preventive or corrective opportunities provided by the agency

or to avoid harm otherwise. Burlington Industries, Inc., v. Ellerth,

118 S.Ct. at 2270; Faragher v. City of Boca Raton, 118 S.Ct. at 2293;

Enforcement Guidance: Vicarious Liability for Unlawful Harassment by

Supervisors, EEOC Notice No. 915.002 (June 18, 1999).

Upon review of the record we find, assuming that the incidents alleged

occurred as stated by complainant, that management took proper action

in correcting the harassing behavior. In so finding, we note that

complainant alleges that he was subjected to unlawful harassment in the

form of derogatory racial comments. (Report of Investigation, Exhibit

F-2, pg. 1). We find, however, that once management was made aware of the

statements by CW, the matter was investigated, CW was disciplined, and CW

was relocated to another location. (ROI, ex. F-4, pg. 2). Accordingly,

we find that the agency exercised reasonable care to prevent and correct

promptly any harassing behavior.

With respect to complainant's termination, 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). He must generally establish a

prima facie case by demonstrating that he 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). The prima facie inquiry may be dispensed with in this case,

however, since the agency has articulated legitimate and nondiscriminatory

reasons for its conduct. See United States Postal Service Board of

Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department

of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997).

To ultimately prevail, complainant must prove, by a preponderance of the

evidence, that the agency's explanation is a pretext for discrimination.

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); Texas

Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981);

Holley v. Department of Veterans Affairs, EEOC Request No. 05950842

(November 13, 1997); Pavelka v. Department of the Navy, EEOC Request

No. 05950351 (December 14, 1995).

Assuming, arguendo, that complainant established a prima facie case of

race and reprisal discrimination, we find that the agency articulated a

legitimate non-discriminatory reason for its actions. The record reflects

that complainant committed several errors during his probationary period

and was counseled several times by his Front Line Supervisor (FLS).

The record further shows that despite these warnings, complainant

continued to commit similar errors. (ROI, ex. F-4, pg. 2). FLS stated

that she had never counseled a probationary employee as often as she

had to counsel complainant. Id. Complainant's Direct Supervisor (DS)

also provided affidavit testimony as to problems with complainant's job

performance. (ROI, ex. F-5, pg. 2). We find, therefore, that the agency

has articulated legitimate, non-discriminatory reasons for its actions.

Further, we find that complainant failed to proffer any evidence to show

that these reasons were merely pretext for unlawful discrimination.

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

decision.

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

August 20, 2009

Date

2

0120090046

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

5

0120090046

6

0120090046