0120071589
06-25-2009
Edward Cunningham, Jr., Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Edward Cunningham, Jr.,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120071589
Hearing No. 150-2006-00114X
Agency No. HS05FEMA003922
DECISION
On February 7, 2007, complainant filed an appeal from the agency's January
8, 2007 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 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).
BACKGROUND
At the time of events giving rise to this complaint, complainant
worked as a Courier at the Federal Emergency Management Agency (FEMA)
Disaster Field Office located in Orlando, Florida. On April 12, 2005,
complainant filed an EEO complaint alleging that he was discriminated
against on the bases of race (African-American), sex (male), religion
(Catholic), color (Black), disability, and age (51) when:
1. on February 2, 2005, a management official accused him of failure
to follow instructions and being argumentative that subsequently led to
his termination;
2. on December 17, 2004, a management official stated he would throw
complainant's motorcycle in the trash and later it was mysteriously
broken; and
3. in November 2004, complainant's second level supervisor (S2) made
racial statements in the workplace when he (S2) showed some co-workers
his tattoo of a confederate flag.
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 (AT). Complainant timely
requested a hearing. The AJ found that, after viewing the evidence in
the light most favorable to complainant, a decision without a hearing
was appropriate because there were no genuine issues of material fact
in dispute. The AJ issued a decision without a hearing on August 21,
2006, finding no discrimination. Specifically, the record reflects
that complainant was terminated for failure to follow instructions
and destruction of government property. Complainant caused damage
to a copy machine by failing to properly secure it in the truck, and
he failed to deliver some heating equipment and was untruthful about
it when asked by his supervisors. The AJ concluded that complainant's
allegations were insufficient to establish a severe or pervasive hostile
work environment. Specifically, the AJ noted that complainant presented
no evidence whatsoever regarding who allegedly vandalized his motorcycle.
The AJ further determined that the incident when S2 showed to co-workers
his tattoo of a confederate flag, was insufficient to establish that
the allegations in the instant case were based upon race or color.
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.
On appeal, complainant contends that he should have been granted
a hearing, and that the issues in his complaint were not properly
investigated. The agency requests that we affirm its final decision.
ANALYSIS AND FINDINGS
As an initial matter we note that, as this is an appeal from a FAD
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). 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, it is not appropriate
for an AJ to issue a decision without a hearing. In the context of an
administrative proceeding, an AJ may properly issue a decision without
a hearing only upon a determination that the record has been adequately
developed for summary disposition. Petty v. Defense Security Service,
EEOC Appeal No. 01A24206 (July 11, 2003); Murphy v. Dept. of the Army,
EEOC Appeal No. 01A04099 (July 11, 2003).
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).
To establish a claim of harassment, 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).
After a careful review of the record, the Commission finds that a decision
without a hearing was appropriate. Specifically, the Commission finds
that the investigative record was adequately developed, there were no
genuine issues of material fact; and there were no findings of fact made
by weighing conflicting evidence or assessing witness credibility.
Here, we concur with the AJ's finding that assuming, arguendo, complainant
established a prima facie case of sex, race, color, age (51), religion
(Catholic) and/or disability discrimination, the agency nonetheless
articulated legitimate, non-discriminatory reasons for its actions
that complainant failed to show were pretextual. The record reflects
that complainant was terminated for failure to follow instructions and
destruction of government property. Complainant caused damage to a copy
machine by failing to properly secure it in the truck, and he failed to
deliver some heating equipment and was untruthful about it when asked
by his supervisors. We concur with the AJ's finding that complainant
proffered no evidence from which a reasonable fact-finder could conclude
that the agency's actions were motivated by discriminatory animus toward
complainant's protected group.
Upon review of the incidents set forth by complainant, we also agree
with the AJ that they were not so sufficient severe or pervasive as to
constitute unlawful harassment. The Commission has repeatedly found that
claims of a few isolated incidents of alleged harassment usually are
not sufficient to state a harassment claim. See Phillips v. Department
of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks
v. Health and Human Services, EEOC Request No. 05940481 (February 16,
1995). Unless the conduct which complainant identified is very severe, a
single incident or isolated incidents generally will not create a hostile
environment. See, e.g., Scott v. Sears, Roebuck and Co., 798 F.2d 210,
214 (7th Cir. 1986). The AJ found that complainant has not demonstrated
that he was subjected to severe or pervasive objectively and subjectively
offensive conduct. The AJ determined that including his termination,
complainant cites only three isolated incidents over a period of five
months. Accordingly, the AJ found that the incidents were not frequent,
physically threatening or humiliating, severe, and did not unreasonably
interfere with complainant's work performance. Specifically, the AJ
noted that complainant presents no evidence whatsoever regarding who
allegedly vandalized his motorcycle. The AJ further determined that the
incident when S2 showed to co-workers his tattoo of a confederate flag,
was insufficient to establish that the allegations in the instant case
were based upon race or color.
We find that viewing the record evidence in a light most favorable to
complainant, there are no genuine issues of material fact. We further
find that the AJ appropriately issued a decision without a hearing
finding no discrimination. Therefore, we discern no basis to disturb
the AJ's decision and the agency's final order 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
June 25, 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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