0120073802
02-20-2009
Joseph I. Mamman, Complainant, v. Edward C. Hugler, Acting Secretary, Department of Labor, Agency.
Joseph I. Mamman,
Complainant,
v.
Edward C. Hugler,
Acting Secretary,
Department of Labor,
Agency.
Appeal No. 0120073802
Hearing No. 530-2006-00130X
Agency No. 05-02-110
DECISION
On September 6, 2007, complainant filed an appeal from the agency's August
6, 2007 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. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). 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 a Equal Opportunity Specialist at the agency's Office of Federal
Contract Compliance Programs facility in Mountainside, New Jersey.
On June 21, 2005, complainant filed an EEO complaint alleging that he was
subjected to a hostile work environment in reprisal for prior protected
EEO activity when he was placed on leave without pay status on March 14,
2005; the agency interfered with complainant's ability to discharge his
duties efficiently in that he was not supplied with tools and equipment to
assist in performance of his duties, including a port replicator for his
laptop, a telephone calling card, a government car key, and a government
identification card and mailbox; the agency delayed granting complainant
permission to work flexi-place; and the agency made no provision for
the installation of a dedicated telephone line at his residence.
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 timely
requested a hearing, and the AJ held a hearing on June 12, 2007.
During the hearing, complainant testified that he previously filed
an appeal with the Merit Systems Protection Board (MSPB) in which he
alleged that the agency discriminated against him on the bases of race,
sex, and national origin when it failed to allow him to rescind his
October 1, 2004 resignation. Complainant further testified that while
preparing for the MSPB hearing with his attorney on March 14, 2005,
his attorney received a letter dated March 10, 2005 from the agency
directing complainant to report to work at 8:30 a.m. on March 14, 2005.
Complainant stated that he reported to work on March 17, 2005, after the
conclusion of his MSPB hearing, but the agency charged him with leave
without pay for May 14, 2005.
Complainant testified that when he reported to work, he talked to his new
supervisor about receiving a port replicator,1 calling card, government
identification, and key to the agency vehicle, and the supervisor stated
that she was going to contact the appropriate people in the region about
obtaining those items for complainant. Complainant stated that he did
not receive the port replicator and mail inbox until weeks after her
request, and the other items were not provided to him.2 Complainant
further testified that he did not ask his supervisor about working
flexi-place after he was reinstated, but he was entitled to work
flexi-place because there was a union agreement in place that allowed
him to work flexi-place.
Agency management testified that complainant was charged with leave
without pay for May 14, 2005 because complainant had no leave balance
upon his reinstatement. Management further testified that complainant
was not provided with a government identification card because a "sister
agency" had to take complainant's photograph, which was not accomplished
until shortly before complainant was removed from employment. Management
further testified that complainant was not initially provided a port
replicator because his supervisor did not know what a port replicator
was, and once she learned what it was, she contacted the technology
department to obtain one for complainant. Management also testified
that the technology department was unable to find the port replicator
complainant previously had but eventually found one for complainant.
Management stated that complainant was always able to use his desktop
computer, which was connected to the network.
Complainant supervisor further testified that complainant was not
provided with a key to the agency vehicle because no other employee she
supervised had a key, and complainant could use the vehicle upon request.
The supervisor stated that mail was delivered to complainant's desk
until he was later provided with his own mailbox. Management further
testified that a request for a calling card was made on complainant's
behalf to the Planning and Support department, but the processing of the
request took time, and complainant had access to a phone in his office.
Management further testified that complainant was not permitted to
work flexi-place because the agency's workload was very low, and thus,
there was no need to install a dedicated telephone line at complainant's
residence during a period of budget constraints.
In a decision dated June 15, 2007, the AJ found that complainant
failed to prove that he was subjected to a hostile work environment
in reprisal for EEO activity. Specifically, the AJ concluded that
complainant failed to establish that his supervisor was aware of
complainant's prior EEO activity. The AJ further concluded that the
alleged actions were not severe or pervasive enough to constitute a
hostile work environment. Finally, the AJ further found that the agency
offered legitimate, non-discriminatory reasons for its actions that where
were not persuasively rebutted by complainant as pretextual. The agency
subsequently issued a final order adopting the AJ's findings. Complainant
did not submit a statement on appeal, and the agency requests that we
affirm its final order.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
Upon review, we find that substantial evidence supports the AJ's
conclusion that the agency provided legitimate, non-discriminatory
reasons for its actions that were not proven by the agency to be
pretext for reprisal. Moreover, we find that the alleged events in
complainant's harassment claim are not severe or pervasive enough to
constitute a hostile work environment claim. Thus, we find that the
AJ properly found that complainant was not subjected to a hostile work
environment based on reprisal and affirm the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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
___ February 20, 2009_______________
Date
1 A port replicator is a device used to quickly connect multiple
peripherals such as a monitor, printer, network, keyboard, and mouse,
to a laptop using only one connector.
2 Complainant was removed from the agency effective July 8, 2005.
Complainant's removal is not included in the instant complaint.
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0120073802
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120073802