01A13821
09-19-2002
John E. Gray, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
John E. Gray v. Department of the Navy
01A13821
September 19, 2002
.
John E. Gray,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A13821
Agency No. 98-00171-003
Hearing No. 100-99-7809X
DECISION
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.
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 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.
BACKGROUND
The record reveals that complainant, a Police Officer, GS-06, at the
agency's Naval District of Washington, Washington, D.C. facility, filed
a formal EEO complaint on April 26, 1998, alleging that the agency had
discriminated against him on the bases of disability (right knee injury)
and reprisal for prior EEO activity when he was subjected to continuous
and on-going harassment by his supervisors beginning September 5, 1997.
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 decision without a hearing,
finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of disability and/or reprisal discrimination. The AJ concluded that it
is undisputed that complainant seriously injured his knee and required
corrective surgery, which resulted in medical restrictions during the
post-operative recovery period. The AJ found that complainant's ability
to walk and run were limited during this recovery period, but, the
impairment was temporary in nature. The AJ concluded that complainant
was returned to full duty, without restrictions, in August 1998.
Therefore, the AJ concluded that complainant's transitory condition did
not substantially limit any of his major life activities, and that he
is not an individual with disability as defined by EEOC regulations or
the Rehabilitation Act.
The AJ further concluded that complainant failed to establish a prima
facie case of reprisal discrimination. Specifically, the AJ concluded
that complainant did not present any evidence to establish that his
supervisors were aware of his protected activity. Finally, the AJ
concluded that assuming the accuracy of complainant's versions of events,
the conduct cannot be considered sufficiently severe or pervasive to have
altered the conditions of complainant's work environment. Therefore,
the AJ concluded that complainant failed to establish a prima facie case
of discriminatory harassment.
Complainant makes no new contentions on appeal, and the agency requests
that we affirm its final order.
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, 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.
The harassment of an employee based on his/her race, color, sex,
national origin, age, disability, or religion is unlawful, if it is
sufficiently patterned or pervasive. McKinney v. Dole, 765 F.2d 1129,
1138-39 (D.C. Cir. 1985). To prevail on his harassment claims, however,
complainant must show that he was subjected to harassment because
of discriminatory factors with regard to an issue in his complaint.
In assessing allegations of harassment, the Commission examines factors
such as the frequency of the alleged discriminatory conduct, its severity,
whether it is physically threatening or humiliating and if it unreasonably
interferes with an employee's work performance. Harris v. Forklift
Systems, Inc., 510 U.S. 17 (1993). Consistent with the Commission's
policy and practice of determining whether a complainant's harassment
claims are sufficient to state a hostile or abusive work environment
claim, 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). In determining
whether an objectively hostile or abusive work environment existed, the
Commission will consider whether a reasonable person in the complainant's
circumstances would have found the alleged behavior to be hostile
or abusive.
To establish a prima facie case of hostile environment harassment,
complainant must show that: (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; 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. Harassment based
on disability is subject to the same standards, as outlined above. See
Fox v. General Motors, 247 F.3d 169 (4th Cir. 2001); Flowers v. Southern
Regional Physicians Services, 247 F.3d 229 (5th
Cir. 2001).
The Commission agrees with the AJ's finding that complainant failed to
establish a prima facie case of retaliation or disability harassment.
Presuming complainant is a qualified person with disabilities, we find
no evidence to show that complainant was treated differently than
similarly situated employees. The record reveals that complainant
alleged that his supervisor harassed him about: returning to full duty;
made negative comments about his work performance; transferred his
first level supervisor to the night shift; issued him a memorandum about
absence without leave on May 28, 1998; and referred him to counseling
and referral service on January 13, 1998. However, we find that those
incidents he claims constituted harassment was not sufficiently severe
to create an intimidating, hostile, or offensive work environment.
Complainant also failed to establish that those actions taken by his
supervisor were based on his membership in the protected classes and,
thus, that he was subjected to prohibited harassment. See Bennett
v. Department of the Navy, EEOC Request No. 05980746 (September 19,
2000); Wolf v. United States Postal Service, EEOC Appeal No. 01961559
(July 23, 1998). As to the remaining incidents, even assuming the events
described by complainant occurred as alleged, they do not rise to the
level of a hostile work environment based on his disability, or reprisal.
In conclusion, after a de novo review of the record, we find that there
are no genuine issues of material fact. The Commission finds that the AJ
correctly decided that summary judgment was appropriate in this case, and
the AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. We discern no basis
to disturb the AJ's decision. Therefore, we AFFIRM the agency's final
decision finding no discrimination.
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 19, 2002
__________________
Date