01a43472
09-28-2004
James A. Bullock v. Department of the Navy
01A43472
September 28, 2004
.
James A. Bullock,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A43472
Agency No. DON-02-00189-096
Hearing No. 120-2003-00425X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final order
concerning his formal 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 Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and the Equal
Pay Act of 1963 (EPA), as amended, 29 U.S.C. � 206(d) et seq. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission affirms the agency's final order.
ISSUE PRESENTED
The issue presented herein is whether complainant has proven by
preponderant evidence that he was subjected to a pattern of harassment
and disparate treatment based on race (African-American), sex (male) and
age (d.o.b., August 15, 1940), which ultimately led to his constructive
discharge.
BACKGROUND
The record reveals that complainant, a Staff Accountant, GS-0510-11 at
the agency's Resource Management Department at the Fleet and Industrial
Supply Center (FISC), in Norfolk, Virginia, filed a formal EEO complaint
on September 24, 2002, in which he alleged what has been identified
as the issue presented. The specific incidents on the part of the
agency considered by complainant to be discriminatory are as follows:
(1) requiring him to perform higher level duties without receiving
commensurate grade and pay; (2) refusing to provide him with assistance
for his work in the Command Evaluation Office; (3) refusing to provide a
desk audit for his position on July 19, 2002; (4) removing his furniture
out into the hallway so that his office could be repaired and painted
without prior notification or arrangements for an alternative office;
(5) attacking him verbally about the progress of the Annual Management
Control Certification Statement; and (6) removing some of his duties
to avoid paying him at a commensurate level, upgrading his position,
or announcing his position for competitive promotion.
The complaint was accepted for investigation and at the conclusion
thereof, complainant received a copy of the investigative report and
requested a hearing before an EEOC Administrative Judge (AJ). The AJ
issued a decision finding that complainant had not been discriminated
against as alleged. The agency, in its final order, implemented the
AJ's decision. Complainant appealed.
On appeal, complainant argues there are issues of material fact in
dispute, and therefore he is entitled to a hearing. Complainant further
argues the AJ's decision, and the agency's implementation thereof,
made no mention of his EPA claim. Finally, complainant argues that it
is unclear whether the agency's Motion to Dismiss one of his claims,
which was included with the Motion for a Decision Without a Hearing,
was granted by the AJ. These arguments and the merits of complainant's
discrimination claims are addressed below.
ANALYSIS AND FINDINGS
Decision Without a Hearing
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 examining the testimonies of the various witnesses and other
evidence provided by the parties, we find that the AJ's decision to
issue a ruling without a hearing was appropriate.
Procedural Dismissal
As stated previously, the agency, in its Motion to Dismiss, asked the
AJ to dismiss as untimely one of complainant's six allegations, namely,
the allegation regarding the agency's failure to pay complainant a salary
commensurate with the level of work he was performing. The agency's
argument centered around the fact that this allegation stemmed from
a desk audit requested and received by complainant in June 1999.
By September 1999, the auditor had determined that complainant's position
was appropriately graded at the GS-11 level. The agency argued that
the auditor's decision was tantamount to a denial of a non-competitive
promotion, and therefore constituted a separate and discrete act, which
started the limitations period in which to contact an EEO counselor
to run. The agency further argued that because complainant did not
bring this matter to an EEO counselor within the limitations period,
it should be dismissed. Complainant argues that the auditor's denial
is an example of the continuous pattern of harassment to which he was
subjected, and therefore should be considered timely, particularly since
he was never made aware of the auditor's results. Regarding this matter,
we agree with complainant that it is difficult to ascertain whether
the AJ granted the agency's Motion to Dismiss this issue as untimely.
That notwithstanding, and without making a ruling as to the legitimacy
of the arguments put forth by either party as to whether this allegation
should be dismissed, we have decided to address the merits since the
evidentiary record is sufficient to allow us to do so.
Disparate Treatment under Title VII and the ADEA
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in Title VII and ADEA cases
alleging discrimination is a three-step process. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-803 (1973); see, Loeb v. Textron, 600
F.2d 1003 (1st Cir. 1979). First, complainant must establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination; i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination. Id. at 256.
Although the initial inquiry in a discrimination case usually focuses
on whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated a
legitimate, nondiscriminatory reason for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the complainant has
established a prima facie case to whether s/he has demonstrated by a
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
Here, we find that the agency has stated legitimate, nondiscriminatory
reasons for its actions. Specifically, the responsible management
officials (RMOs) denied that complainant was not given pay commensurate
with the level of work he was performing or that he was denied assistance
in the Command Evaluation Office. Regarding the pay issue, the agency
admitted that when complainant's former supervisor, employed at the
GS-12 level, left the agency, complainant was given some of her duties.
The RMOs added, however, the former supervisor's position was classified
at the GS-12 because her job contained supervisory duties, which were
never assigned to complainant and that is the reason he remained at the
GS-11 level. Regarding the denial of assistance, complainant's supervisor
stated that he initially provided complainant with military personnel, and
then ultimately assigned an intern to assist him. Complainant's second
line supervisor confirmed that complainant was provided assistance then
conceded that complainant may not have been given the level of assistance
he desired, but stated that was due to budgetary constraints, not any
prohibited reasons.
Complainant's first and second level supervisors refuted that complainant
was denied a desk audit on July 19, 2002. And there is no evidence in
the record which reflects that such a denial ever occurred. What is
clear from the record, however, is that complainant was given a desk
audit in June 1999 and sometime between February 22, 2001, and September
17, 2002. Both supervisors also refuted that they had a role in removing
complainant's furniture into the hallway without prior notification
so that complainant's office could be repaired and painted. Instead,
complainant's second line supervisor stated that informing complainant of
the repairs and paint was the responsibility of the Facilities Director,
who is not named by complainant as a responsible management official.
There is some evidence in the file which suggests complainant was not
present at a meeting during which the reparations were discussed.
Complainant's supervisor denied that he verbally attacked complainant,
but admitted that he may have approached complainant and was upset
concerning the progress being made on the Annual Management Control
Certification Statement. An agency employee testified that she overheard
the confrontation and that both employees raised their voice. Another
agency employee testified that she overheard the confrontation as well,
and thought it was inappropriate for complainant's supervisor to approach
complainant in a non-private manner. Implicit in the supervisor's
testimony is that the confrontation related to complainant's job
performance with respect to a particular job assignment.
Finally, complainant's supervisor denied that any of complainant's duties
were ever taken away. He went on to state that any of complainant's
duties that were assigned to others were in response to complainant's
request for assistance. Complainant's position description confirms
that none of his duties were officially removed.
Because the agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory events, complainant now bears the burden
of establishing that the agency's stated reason is merely a pretext for
discrimination. Shapiro v. Social Security Administration, EEOC Request
No. 05960403 (December 6, 1996). Complainant can do this by showing
that the agency was motivated by a discriminatory reason. Id. (citing
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)). In attempting
to meet his burden, complainant argues that he should have been paid
at a higher level because he managed the Command Evaluation Program.
Even if true, this still does not refute the agency's assertion that
complainant was paid at his current level because he did not have any
supervisory duties. Managing a program is not necessarily equivalent
to supervising employees.
Complainant further argues that he was not provided with assistance for
his work in the Command Evaluation Program because the person charged
with assisting him physically worked for and was assigned duties by his
first line supervisor. That may be so, but complainant did provide
a statement that the agency provided him with assistance which was
inadequate. But this argument is not inconsistent with management's
statements that complainant was provided with an assistant, who may not
have been available as often complainant liked due to budgetary concerns.
As noted earlier, complainant provided no evidence he was denied a desk
audit on July 19, 2002.
As to the allegation concerning moving complainant's office furniture
into the hallway due to repairs, complainant argues that management did
know about the move. Neither management official, complainant's first
line or second line, denied knowing about the move, instead the second
line manager stated that another agency official was responsible for
informing affected employees. Complainant failed to present evidence,
other than mere allegations, that the verbal confrontation between he
and his supervisor was linked to his membership in a protected class.
Finally, there is no evidence that some of complainant's duties were
removed.
None of the arguments put forth by complainant to prove pretext convinces
the Commission that the agency's stated reasons for its actions were
a cover designed to mask discriminatory animus toward complainant's
membership in a protected group. Therefore, complainant's disparate
treatment claim fails.
Harassment under Title VII and the ADEA
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
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 alleged that he was harassed on the bases of his race, sex,
and age with regard to the six specified allegations mentioned previously.
To establish a claim of harassment in this context, complainant must
show that the following five elements exist: (1) he is a member of a
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; (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; 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); see also Flowers v. Southern Reg'l Physician Serv. Inc.,
247 F.3d 229 (5th Cir. 2001); Fox v. General Motors Corp., 247 F.3d 169
(4th Cir. 2001). Humphrey v. United States Postal Service, EEOC Appeal
No. 01965238 (October 16, 1998). Because we have already determined in
the �Disparate Treatment� portion of this decision that complainant did
not prove by preponderant evidence the actions of which he complained were
based upon his membership in a protected class, we must also conclude, at
the very least, he has failed to show the existence of the third element
which, like the other four elements, is imperative in establishing a
successful claim of harassment.
Constructive Discharge
Complainant also claimed he was constructively discharged. In order
to make out such a claim successfully, complainant must show that
(1) a reasonable person in his position would have found the working
conditions intolerable; (2) conduct that constituted a prohibited
discriminatory act created the intolerable working conditions; and (3)
his resignation resulted from the intolerable working conditions. See,
Taylor v. Army and Air Force Exchange Service, EEOC Request No. 059600630
(July 20, 1990). In this case, complainant has failed to show, as
stated in the preceding portions of this decision, that the conduct of
which he complains constituted a prohibited discriminatory act. Thus,
he cannot prevail on this claim.
EPA Claim
On appeal, complainant argues that the AJ and the agency ignored his EPA
claim. The agency argues that complainant did not raise the EPA as an
issue until he filed the instant appeal. The agency's argument in this
regard is without merit. Just a quick glance of complainant's formal
complaint reveals clearly that he raised the EPA as an issue. Therefore,
this issue should have been addressed by the AJ and the agency. However,
because the facts surrounding this claim were a part of complainant's
Title VII allegations, which were investigated, we have concluded that
the evidence of record is sufficient to allow us to make a ruling on
this matter.
The Supreme Court articulated the requirements for establishing a
prima facie case of discrimination under the EPA in Corning Glass Works
v. Brennan, 417 U.S. 188 (1974). Under these requirements, complainant
must show that he received less pay than an individual of the opposite
gender for equal work, requiring equal skill, effort and responsibility,
under similar working conditions within the same establishment. See 29
C.F.R. � 1620.14(a); see also, Telford v. Department of the Army, EEOC
Appeal No. 01973892 (November 2, 1999). The requirement of "equal work"
does not mean that the jobs must be identical, but only that they must be
"substantially equal." Corning Glass Works at 203, n. 24. In the past,
courts and the Commission have looked to whether jobs share "a �common
core' of tasks, i.e., whether a significant portion of the two jobs is
identical." Fallon v. Illinois, 882, F.2d 1206, 1209 (7th Cir. 1989);
see also, Telford, supra.
In light of these principles, and after a careful analysis of the record
in its entirety, the Commission finds that complainant has failed to
establish a prima facie violation of the EPA. The record establishes
that the female, namely complainant's former supervisor, who received
pay at the GS-12 level was required to perform supervisory duties,
whereas complainant was not. Accordingly, complainant cannot prevail
on his EPA claim.
CONCLUSION
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. We find that the AJ's ultimate decision, that complainant
has not proven discrimination as alleged, was correct. Further,
construing the evidence to be most favorable to complainant, we note
that complainant failed to present evidence that any of the agency's
actions were motivated by discriminatory animus toward complainant's
protected classes. We therefore affirm the agency's final order.
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
September 28, 2004
__________________
Date