0120121048
11-28-2012
Douglas Langley, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Douglas Langley,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120121048
Hearing No. 430-2010-00254X
Agency No. 09-42158-02168
DECISION
On December 21, 2011, Complainant filed an appeal from the Agency's December 5, 2011, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Shipfitter at the Agency's Naval Station facility in Norfolk, Virginia.
The record indicated that from February 17, 2009, through May 9, 2009, Complainant was assigned to work at the British Airways Enterprises facility in Norfolk, Virginia, to work on the "Normandy Project." At that time, he was assigned to work under the Project Leader (Black) and the Manager (Black) who was the second line supervisor.
On September 15, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (American Indian and Caucasian) and color (Red) when he was subjected to harassment while working on the Normandy Project. In support of his claim of harassment, Complainant asserted that the following events occurred:
1. Complainant was not provided with a government vehicle to get his tool cart;
2. He was not provided with the proper tools he needed to perform his job assignments;
3. The Manager commented that everyone should realize that the White House is not white anymore.
4. Complainant was assigned work that required use of a respirator which he is not qualified to use. When he informed the Project Leader, the Project Leader stated that Complainant's "white ass was going to do [the work]."
5. Complainant was made to stand around for four hours before he was given his assignment;
6. He was assigned to perform a job without the proper personal protective equipment to do the job;
7. On May 2, 2009, Complainant was sent home from overtime work because he could not use the respirator.
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 assigned to the case granted the Agency's February 14, 2011, motion for a decision without a hearing and issued a decision without a hearing on October 25, 2011. We note that Complainant filed a response to the Agency's motion on February 24, 2011. Complainant did not assert that there were material facts in dispute. Complainant merely asserted that the Agency's motion erroneously argued that Complainant failed to establish that the events constituted harassment.
The AJ issued his decision without a hearing finding no discrimination. The AJ found that the evidence did not support Complainant's allegation that he was subjected to harassment. The AJ noted that the record indicated that Complainant was not provided with a government vehicle to get tools; however he was given the same opportunity to obtain tools as all other employees. Further, he did not provide evidence that others were provided with a government car to get their tools. In addition, as to the claim that the was assigned work without the proper respirator, the AJ noted that this occurred on three days and that Complainant admitted that there were many days that he worked jobs that did not require the respirator. Further, Complainant was told that he could get one of his co-workers to help him check out a respirator because "that is what people do." As such, the AJ found that these three events were not severe enough to create a hostile work environment. The AJ noted that it may have been improper to order Complainant to work with a respirator, however, Complainant did not show that he was
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.
This appeal followed.
ANALYSIS AND FINDINGS
Decision without a Hearing
We must 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.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
Harassment
It is well-settled that harassment based on an individual's race and/or color is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, Complainant must show that: (1) he belongs to the statutorily protected classes; (2) he was subjected to unwelcome conduct related to his membership in those classes; (3) the harassment complained of was based on race and/or color; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance 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). 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 Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994).
For purposes of analysis, we assume Complainant has established parts (1), (2) and (3) of his claim of harassment.1 The decision will focus on whether the events listed by Complainant in support of his claim were sufficient to show that he was subjected to events, when taken as a whole, had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment. Complainant alleged that he was not provided with a government vehicle to get his tool car; he was not given a respirator to perform his assignment on three occasions; he had to wait four hours for an assignment; he was not permitted to continue to work overtime because he could not use the respirator.
As for the government vehicle and the tools, the record clearly indicated that Complainant was given the same opportunity as the other employees to obtain the tools he needed to perform his assignments. As to the respirator, employees needed training to use this equipment. Complainant did not have the training on the equipment to obtain the equipment himself. However, the Project Leader noted that he could have gotten the equipment with the help of others. Further, when Complainant was working with an apprentice (Apprentice) on overtime work, the Apprentice had the training to use the respirator. Therefore, while the Apprentice was present, Complainant used the respirator as well. When the Apprentice left, Complainant could not use the respirator and was told to stop working overtime. Finally, as to Complainant's claim that he had to wait four hours for an assignment, we note that it occurred once. In addition, Complainant did not contest Management's statements that Complainant was not always present at the time when employees received their projects and they needed to determine his whereabouts. Therefore, upon review of the record, we find that Complainant has not established that the events raised in support of his claim of harassment were sufficient to create a hostile work environment. In addition, to the extent Complainant is alleging discrimination; he has not shown that the Agency's reasons for its actions were a pretext for 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 final action implementing the AJ's decision finding no discrimination.
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
November 28, 2012
__________________
Date
1 It is noted that a significant amount of Complainant's statement on appeal revolved around the issue that the alleged harassment occurred because of the perception that Complainant is White.
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0120121048
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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