01A05365
07-12-2002
Iraj N. Salem, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Iraj N. Salem v. Department of the Army
01A05365
07-12-02
.
Iraj N. Salem,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A05365
Agency No. SAC99AR0518E
Hearing No. 370-AO-X2185
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
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.
ISSUE PRESENTED
The issue presented is whether the agency properly determined that
complainant failed to prove that he was discriminated against based on
his religion when he was issued a Letter of Counseling.
BACKGROUND
The record reveals that complainant, an Assistant Professor in the Persian
Department B, East European School II at the agency's Defense Language
Institute (DFI) facility, filed a formal EEO complaint on April 29,
1999, alleging that the agency had discriminated against him on the
basis of religion (Atheist/unaffiliated) when, on January 29, 1999,
he was issued a Letter of Counseling.
The Letter of Counseling (Letter) was for failure to submit a doctor's
statement for sick leave from December 28, 1998, to January 24, 1999,
for failure to follow proper procedures to request leave, and for failing
to provide doctor's certificates when required. The complainant returned
to work on January 25, 1999, and his supervisor (Bahai religion) asked
him to produce a doctor's slip. Complainant maintains that he produced
the doctor's slip on the morning of January 29, 1999, but that same
day he received the Letter. When the complainant received the Letter
he asserts that he told his supervisor that the Letter was against any
standard of religion and that his supervisor responded, �Oh, you do not
have the religion� and �you don't know the God.�
The supervisor contends that although he thought the complainant was
Muslim, what religion he perceived him to be affiliated with had nothing
to do with his decision to give the complainant the Letter. Instead,
the supervisor asserts that the Letter was issued because he had asked
the complainant to bring in a doctor's certificate since his absence
was for more than three days and because the complainant had a habit
of not filling out leave slips when he returned from approved leave.
With respect to the complainant's claim of disparate treatment, he
asserts that he was discriminated against because of his religion because
two other employees did not have to fill out doctors' certificates.
The supervisor notes that the other employees did not have to fill out
the forms because the supervisor knew the other two Assistant Professors
were ill.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a summary judgment decision
without a hearing on July 5, 2000, finding no discrimination.
The AJ concluded that complainant did not establish a prima facie case
of religious discrimination with respect to the Letter due to the fact
that the agency's representative provided undisputed information and the
complainant was granted all of the leave he requested. From these facts
the AJ concluded that the complainant had not raised an inference that
the Letter was an adverse employment action. The AJ also found with
regard to other issues raised by complainant at the hearing stage,
which had not been accepted for investigation by the agency, that
the complainant did not establish a prima facie case of religious
discrimination or harassment. The AJ additionally concluded that
the complainant produced no evidence showing that similarly situated
employees, not in complainant's protected class, were treated differently
because of their religion in their Requests for Leave.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that the Letters
of Counseling the complainant received were legitimate and reasonable
comments and instructions by a supervisor to a subordinate. The AJ found
that complainant did not establish that more likely than not, the agency's
articulated reasons were a pretext to mask unlawful discrimination.
In reaching this conclusion, the AJ found that the complainant had
failed to produce any evidence, beyond his own speculation, that his
supervisor's actions were motivated by the complainant's atheism or
non-affiliation with an established religion.
In its Final Agency Decision dated July 11, 2000, the agency adopted
the Findings and Conclusions of the AJ. Complainant timely appeals,
without comment.
ANALYSIS AND FINDINGS
Summary Judgment
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. 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, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
facts exists. On February 23, 2000, the AJ issued a Notice of Intent
to Consider Issuance of A Decision Without A Hearing. The complainant
responded to the Notice on March 20, 2000, and asserted that there were
genuine issues of material fact in dispute, citing the claims regarding
harassment the complainant had asserted in his complaint, but had not
been accepted for investigation. Following the complainant's response,
the AJ convened a telephonic conference which occurred on May 25, 2000,
and the complainant's issue regarding harassment was discussed at length.
At the end of the conference the AJ informed the participants that the
AJ was still inclined to grant summary judgment, but stated that the AJ
would give the parties until June 30, 2000, to submit additional evidence
in regard to the Letter and alleged harassment. The complainant did
submit additional information on June 27, 2000. The agency, however,
never submitted material disputing facts to what the complainant was
alleging in regard to the harassment claim.
Disparate Treatment
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). 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, 120 S.Ct. 2097 (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).
In the Summary Judgment opinion, the AJ decided that the Letter was
not an adverse employment action. However, we disagree and find that
a Letter of Counseling does state a claim. See Stephens v. Department
of Health and Human Services, EEOC Request No. 05940619 (February 16,
1995) (holding that a Letter of Counseling sets forth a claim and thus,
remanding for further processing). Nonetheless, where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the agency's
actions were motivated by discrimination. U.S. Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Holley, supra.
In this case, we find that the agency has stated legitimate,
nondiscriminatory reasons for its actions. Specifically, the agency
stated that complainant was given a Letter of Counseling because: (1)
it is agency policy to bring in a doctor's certificate for absences of
three days or longer and this policy is located in the union contract; and
(2) the complainant had a habit of not filling out leave slips when he
returned from approved leave. The agency official stated he also issued
the Letter because the complainant initially requested he be granted
annual leave for the period of December 28, 1998 to December 31, 1998,
but later changed it to sick leave, and the request was close to the
Christmas holiday period.
The Commission agrees with the AJ that the complainant has failed to
produce any evidence beyond his own speculation that his supervisor's
actions were based on complainant's atheism or non-affiliation with
an established religion. While the complainant bases his claim on one
remark from the supervisor and the two instances where other Assistant
Professors did not have to produce doctor's certificates, neither of these
reasons are enough to prove beyond a preponderance of the evidence that
the agency's articulated reasons are pretext for discrimination. First,
the complainant's supervisor states that he did not even know that the
complainant was an atheist, but rather assumed he was Muslim. Therefore,
his remark about not knowing God was not intended to be defamatory
toward the complainant's religion and certainly not the reason why the
supervisor issued the Letter of Counseling. Second, while two other
Assistant Professors did not have to provide doctor's certificates when
they missed more than three days of work, the record indicates that these
two individual's religions were listed as �unknown� and �no affiliation�.
Complainant did not show that these individuals had a similar history
of problems submitting timely leave requests. Additionally, we note
that the AJ found that it was undisputed that complainant was ill from
January 4, 1999, until January 25, 1999. Therefore complainant has not
shown the agency's reasons to be pretext for discrimination.
Harassment/Hostile Work Environment
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
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).
Complainant alleges that he was subjected to a hostile work environment
and harassment. To establish a prima facie case of hostile environment
harassment, a complainant must show that: (1) s/he is a member of a
statutorily protected class; (2)s/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.
In the present case the complainant contended that the January 29, 1999,
Letter was only one in a series of actions that amounted to harassment by
his supervisor. The record indicates that the complainant had received
a prior Letter of Counseling, on June 26, 1998, for failing to appear
for class and that the complainant's supervisor had written a letter to
a dean detailing the complainant's similar infractions in December 1997,
January, and April 1998. The record also includes memoranda and other
documents indicating that prior to January 1999, the complainant had been
cited for not following proper leave request procedures. Therefore,
the Commission agrees with the AJ that these communications cannot be
characterized as harassment. The acts do not amount to intimidation or
ridicule that is sufficiently pervasive or severe to alter the conditions
of the complainant's employment. We also find that complainant has not
shown that these actions were connected to or based on his protected
class. In addition, the complainant has not provided any factual support
for his vague and conclusory assertion that his supervisor's treatment
amounted to �harassment.�
CONCLUSION
Accordingly, the agency's adoption of the AJ's decision granting summary
judgment and finding no discrimination was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
____07-12-02______________
Date