0120071441
01-07-2009
Eugene W. Santos, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Eugene W. Santos,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120071441
Hearing No. 140-2006-00056X
Agency No. 06-62467-00288; 05-6247-01259
DECISION
On January 16, 2007, complainant filed an appeal from the agency's
December 12, 2006 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. 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 an Engineer, GS-0819-12 at the agency's Southern Division,
Naval Facilities Engineering Command facility in North Charleston,
South Carolina. On January 26, 2006, complainant filed an EEO complaint
alleging that he was discriminated against on the bases of sex (male)
and in reprisal for prior EEO activity when he was subjected to a hostile
work environment. The incidents of harassment included the following
events:
1. On April 12, 2005, complainant was issued a Letter of Caution
for attending a training session without prior supervisory approval;
2. On April 15, 2005, complainant was placed on an unofficial
Performance Improvement Plan;
3. On April 29, 2005, complainant was issued a Letter of Reprimand
for failure to follow instructions;
4. From October 31, 2005 through November 4, 2005, complainant was
suspended from duty for five days for failure to follow instructions; and
5. On December 9, 2005, complainant received a Letter of Reprimand
for disrespectful and disruptive behavior.
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 requested
a hearing. Over complainant's objections, the AJ assigned to the case
granted the agency's motion for a decision without a hearing and issued
a decision without a hearing on October 31, 2006.
In her decision, the AJ found that the agency's motion accurately
set forth the relevant facts of the complaint together with the
following additional facts. The AJ assumed, as complainant alleged,
that when complainant first began working for supervisor, S1, she
said to him, "You do know that I do your performance appraisal now,
don't you?" Additionally, the AJ assumed as true, that on March 1, 2005,
following a conference call with a customer in Corpus Christi, Texas, S1
said to complainant, "Don't drive them crazy while you are down there!"
The AJ found that taking all reasonable inferences, including the two
statements attributed to S1 as true, that complainant had failed to
show that the agency's reasons for taking the disciplinary measures it
did were pretext to mask discrimination. Rather, the AJ found that the
agency had set forth undisputed reasons for its actions that complainant
was unable to show were unworthy of belief. Specifically, complainant
received the letter of caution (claim (1)), after he attended a training
session without authorization from S1, and he was also cautioned after
speaking in an angry and uncontrolled manner to her. The AJ found
that S1 was compelled by complainant's failure to provide her with
certain information about his assignments, to spell out for complainant
his responsibilities and the expectations she had for him (claim (2)).
Further, the AJ found that complainant received a reprimand for failure
to follow instructions when he failed to provide S1 with his schedule
(claim (3)). S1 later suspended complainant for again failing to
follow instructions when he persisted in contacting a state regulator
after S1 had instructed him not to contact her directly (claim (4)).
With respect to claim (5), the AJ found that complainant was reprimanded
for displaying disrespectful behavior toward a colleague.
The AJ observed that complainant did not deny the actions cited by
the agency in the disciplinary actions. Rather, the AJ noted that by
his arguments, complainant believed that his participation in the EEO
process served to insulate him from negative events in the workplace
including ordinary disciplinary measures designed to address conduct
and performance issues when complainant failed to follow the clear
instructions of his supervisor.
The AJ found that complainant did not show that the agency's actions were
pretext and did not show that discrimination based on sex or reprisal
was the real reason for the agency's actions. The AJ found that no
material facts remained in dispute and that complainant had not proven
that discrimination occurred as alleged. The agency subsequently issued
a final order dated December 12, 2006, adopting the AJ's finding of no
discrimination.
On appeal, complainant argues, as he did in opposition to the agency's
motion for a decision without a hearing, that the disciplinary actions
taken by S1 against him began only after complainant had accused S1
of sex discrimination after a career void of any prior disciplinary or
performance problems. Complainant states that a review of the sequence
of events shows that the various incidents (letters of reprimand, letter
of caution and the suspension) follow closely the specific events in
the EEO process and were orchestrated to punish complainant for pursuing
his right to enjoy a workplace free of harassment. Complainant states
that he has suffered physically and mentally from the stress and hostile
work environment he has had to endure. Complainant believes S1 pursued
a course of harassment designed to force complainant to resign.
ANALYSIS AND FINDINGS
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).
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, 120 S.Ct. 2097 (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, we find the AJ properly determined that no material
facts remained in dispute requiring a hearing and that drawing every
reasonable inference in complainant's favor, complainant did not establish
that he was subjected to sex or reprisal discrimination as alleged.
Specifically, we note for example, that in his affidavit, complainant
states that he did contact the state regulator after being instructed not
to do so, because he believed it necessary to meet an imposed deadline.
With respect to complainant's behavior during the meeting on November 14,
2005, that became the subject of claim (5), complainant disagrees with
S1's description of his behavior as disrespectful. Assuming for the
sake of argument that complainant did not raise his voice at the time,
complainant does not deny that he had an exchange with a co-worker,
and that S1 instructed complainant to "settle down" and to discontinue
the exchange. Complainant admits he was agitated and we find that
complainant has not shown that reprisal motivated S1's decision to address
the incident by issuing progressive discipline shortly thereafter,
in light of complainant's prior failures to follow her instructions.
We find that complainant did not establish that the reasons cited by
the agency for its actions were untrue; nor did complainant show that
he was treated differently than employees in the similar circumstances
who were not in his protected groups.
Based on a thorough review of the record and the contentions on appeal,
we AFFIRM the agency's final decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 19848,
Washington, D.C. 20036. 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
January 7, 2009
__________________
Date
2
0120071441
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
6
0120071441