0520160239
08-09-2016
Herb L.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Herb L.,1
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.
Request No. 0520160239
Appeal No. 0120160258
Hearing No. 570-2013-00577X
Agency No. HS-ICE-21259-2012
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120160258 (March 1, 2016). Regulations provide that the Equal Employment Opportunity Commission (EEOC or Commission) may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c).
After reconsidering the previous decision and the entire record, it is the decision of the Commission to VACATE the previous decision in EEOC Appeal No. 0120160258.
BACKGROUND
At the time of the alleged discrimination, Complainant worked under contract as a National Environmental Protection Act Specialist with the Agency's office in Washington, D.C.
On January 26, 2012, Complainant filed a formal EEO complaint alleging discrimination on the bases of national origin (Asian-American) and age (71) when he was subjected to a hostile work environment. In support of his claim of harassment, Complainant alleged the following events:
a. in September 2011, Complainant was terminated from his contract position with the Agency;
b. in early May 2011, the Program Manager verbally reprimanded Complainant using harsh works and tone; and
c. from mid-May 2011 to mid-June 2011, Complainant was asked when he would retire by his supervisor (Supervisor).
The matter was accepted for investigation. Following the investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ).
The Agency filed a motion for summary judgment, and the AJ determined that there were no material facts in dispute and, on August 4, 2015, issued a decision without a hearing finding no discrimination. The AJ determined that Complainant failed to establish that, under the circumstances presented, that he was subjected to severe or pervasive treatment sufficient to create an illegal hostile work environment. The AJ assumed for purposes of analysis that Complainant's version of the events were true.
As to events listed as (a), (b) and (c), the AJ noted that the Supervisor had concerns with Complainant's work performance and attendance when the two met along with Complainant's second line supervisor (Branch Chief). The Supervisor also shared her concerns about Complainant's performance with other management officials. The AJ noted that Complainant's contract was already scheduled to end in September 2011, and was not an action taken by the Supervisor. The AJ determined that Complainant failed to show that the alleged reprimand or any question about Complainant retiring were anything but common workplace occurrences which did not amount to harassment.
The AJ noted that Complainant asserted that the Supervisor stated once to his coworker that "[she] cannot talk to [Complainant]. He is of your nationality. You talk to him." The AJ found that this comment was not severe or pervasive enough to create a hostile work environment. Further, Complainant provided no other evidence beyond his own assertions and beliefs that he was subjected to discrimination. The AJ held that Complainant failed to provide evidence that discrimination was the motivating factor in the alleged events. The AJ also noted that Complainant conceded that the Supervisor treated others outside of his protected groups in a similar manner. Further, the AJ determined that Complainant did not show that he was singled out for any particular reason other than for the Supervisor's dissatisfaction with his work performance. As such, the AJ concluded that Complainant has not shown that he was subjected to unlawful harassment based on his national origin and/or age.
Following the AJ's decision, the Agency issued its final order implementing the AJ's finding of no discrimination. Complainant appealed the Agency's final order which was the subject of EEOC Appeal No. 0120160258.
In the previous decision, we dismissed Complainant's appeal pursuant to 29 C.F.R. �1614.403(c). The decision noted that the Agency's final decision was received at Complainant's address of record on September 14, 2015. A review of the final decision reveals that the Agency properly advised Complainant that he had 30 calendar days after receipt of its final decision to file his appeal with the Commission. However, we found that Complainant filed his appeal on October 21, 2015, beyond the 30-day limitation period.
In order to merit the reconsideration of a prior decision, the requesting party must submit written argument that tends to establish that at least one of the criteria of 29 C.F.R. � 1614.405(c) is met. The Commission's scope of review on a request for reconsideration is narrow and is not a second appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Nov. 9, 1999), at 9-17; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007).
Here, we determine that Complainant's request meets the regulatory criteria of 29 C.F.R. � 1614.405(c). In his request, Complainant has provided evidence in the form of a certified mail receipt showing that he mailed his appeal on October 10, 2015, which would make it timely filed. Based on this evidence, we vacate our previous decision finding the appeal untimely. Because we are vacating our previous decision, we will now consider the merits of the underlying case, as well as arguments the parties originally submitted on appeal below.
ANALYSIS
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.
In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. While here Complainant has, in a very general sense, asserted that facts are in dispute, he has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. Therefore, 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.
It is well-settled that harassment based on an individual's national origin and/or age 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, the 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 his national origin and/or age; (4) the harassment had the purpose or effect of unreasonably interfering with his/her 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).
Therefore, to prove his harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, because of his national origin or age. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Enforcement Guidance on Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994).
Upon review of the record, we find that the AJ correctly determined that Complainant failed to establish that he was either subjected to conduct that was sufficiently severe or pervasive to create a hostile work environment or that was taken because of his national origin and/or age. The record established that the Supervisor had concerns with Complainant's work performance. Furthermore, Complainant failed to show that a conversation about his plans to retire was hostile or intimidating. Finally, as to Complainant's claim raised in event (a), the record indicated that Complainant's contract was always set to end in September 2011, and the contracting company had informed him of such. No action was taken by the Supervisor to end the contract. Therefore, based on the evidence in the record, we find that the record supports the AJ's decision finding that Complainant has not established that he was subjected to hostile work environment in violation of Title VII and/or the ADEA.
CONCLUSION
After reconsidering the previous decision and the entire record, the Commission finds that the request meets the criteria of 29 C.F.R. 1614.405(c), and it is the decision of the Commission to GRANT the request. We VACATE our pervious decision and AFFIRM the Agency's final order implementing the AJ's decision finding of no harassment. Because the propriety of the Agency's final order has been addressed herein for the first time, the parties will be given reconsideration rights.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
August 9, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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