01996602_01A10671
06-19-2001
Joseph L. Boyle, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Joseph L. Boyle v. Department of Interior
01996602, 01A10671
06-19-01
.
Joseph L. Boyle,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01996602, 01A10671
Agency No. FNP-98-032, FNP-99-064, FNP-99-067
Hearing No. 170-A0-8118X
DECISION
INTRODUCTION
On August 26, 1999 and October 30, 2000, Joseph L. Boyle (complainant)
initiated appeals to the Equal Employment Opportunity Commission (EEOC
or Commission) from the final decisions of the Department of the Interior
(agency), concerning his complaints 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 the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeals are accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, we AFFIRM the agency's final decisions.
ISSUES PRESENTED
The issues presented herein are:
Appeal 1: Agency No. FNP-99-064
Whether the agency properly dismissed allegations 5, 6, 7 and 10 in
complainant's formal EEO complaint for stating the same claim that is
pending before or has been decided by the agency or Commission.
Appeal 2: Agency Nos. FNP-98-032, FNP-99-064, FNP-99-067
Whether the EEOC Administrative Judge (AJ), in making the decision not
to hold a hearing, correctly determined that there were no genuine issues
of material fact.
BACKGROUND
During the relevant time, complainant was employed as a Historian,
GS-170-11, Interpretation and Cultural Resource Management, Valley
Forge National Historical Park, Valley Forge, Pennsylvania (the Park).
Complainant had worked with the agency for 27 years. In February 1993,
complainant acquired additional responsibilities, including management
of the Wilcox Memorial Library, when his co-worker retired. Complainant
grew concerned that his Position Description (PD) did not accurately
reflect his responsibilities in light of the accretion of his duties.
According to complainant, he repeatedly requested an accurate PD from
his supervisor (Supervisor I), but she failed to perform the update.
Complainant believed that he was being subjected to a hostile work
environment based on his age (D.O.B. 11/1/46) and sex. Examples of
the alleged hostile work environment included: Supervisor I informed
complainant that there was a freeze on submitting updated PDs, however,
the Human Resources Specialist informed him that a freeze did not exist;
complainant's existing PD required him to oversee the Park's cultural
compliance procedures, but Supervisor I took the expanded duties for
herself when the duties were delegated to the Park in 1996; Supervisor
I called complainant �Boy� during a conversation; complainant did not
receive computer training, and his request to upgrade his computer
equipment was denied.<1> Complainant sought EEO counseling and
subsequently filed a formal complaint (Complaint 1; FNP-99-067) on May
1, 1997.
In May 1997, the Superintendent of the Park (Superintendent) designated an
Acting Chief, Division of Interpretation and Cultural Resources Management
(Supervisor II). Supervisor II remained in her position beyond the 120
days allowed in the agency's merit promotion statement and the Federal
Personnel Manuel by virtue of an extension. Complainant believed that,
as a result of Supervisor II's presence in the position, he was denied
the opportunity to apply for a 120-day detail to the GS-12 position
as the Acting Chief of Interpretation and Cultural Resource Management
Division. Complainant again sought EEO counseling and filed a formal
complaint (Complaint 2; FNP-98-032) on November 18, 1997. He alleged
discrimination on the bases of race (Caucasian), sex, age and reprisal
(prior EEO activity).
On April 10, 1999, complainant filed a third formal complaint (Complaint
3; FNP-98-064) on the bases of age, race, sex and reprisal.<2> In
Complaint 3, complainant alleged that the discrimination continued when:
2) complainant's new PD was falsified; 3) his request to upgrade his
position was denied; 4) his performance standards were falsified; 5)
his request to be designated Acting Division Chief of Cultural Resource
Management Division was denied; 6) he received nearly 100 letters of
thanks and appreciation, but received no recognition from Supervisor
II; 7) he was not allowed to use a government vehicle to attend park
meetings or travel, while other similarly situated employees were; 8)
he provided a 400-page report to his supervisor and never received a
response; 9) he was denied a non-competitive promotion, while other
similarly situated employees received non-competitive promotions; 10)
he was denied an alternate work schedule, while other similarly situated
employees received alternate work schedules; and 11) his request to
purchase research materials was denied.
Appeal 1
In its final decision dated July 26, 1999, the agency dismissed
allegations 5, 6, 7 and 10 in Complaint 3 for stating the same claim
that was pending before the agency or Commission in Complaint 1.
The FAD also consolidated Complaints 1, 2 and 3 for joint processing.
Complainant asserts that he is raising a new issue in the present
complaint because different officials were involved and the incidents
took place at different times. The agency makes no contention on appeal.
Appeal 2
At the conclusion of the investigation of his three complaints,
complainant was provided a copy of the investigative file and requested
a hearing before an AJ. The AJ issued a decision without a hearing
finding no discrimination.
With respect to Complaint 1, the AJ concluded that complainant failed
to show that the alleged agency conduct created an objectively hostile
or abusive environment on the bases of sex or age, because complainant
failed to show that the conduct was sufficiently severe or pervasive to
alter the conditions of employment and create an abusive environment.
With respect to Complaint 2, the AJ found that complainant's claim
was barred by the doctrine of res judicata and collateral estoppel.
With respect to Complaint 3, the AJ concluded that complainant failed to
establish a prima facie case of race, sex, age or reprisal discrimination
under a disparate treatment theory.<3> Assuming arguendo that a prima
facie case was established, the AJ found that the agency articulated
legitimate, nondiscriminatory reasons for its actions. The AJ determined
that complainant failed to present affirmative evidence to prove that the
agency's articulated reasons were pretext for discrimination. On July
18, 2000, the agency implemented the AJ's decision in its final action.
On appeal, complainant contends, among other things, that: 1) in violation
of 29 C.F.R. � 1614.109(f)(3)(iv), the AJ provided the agency with two
extensions after deadlines had passed and adopted the agency's Motion for
Summary Judgment which was filed one day late; 2) the Superintendent sent
an e-mail message to nineteen employees stating that two employees were
unsuccessful in their EEO complaints; 3) the allegation in Complaint
2 forms a separate claim of discrimination because it occurred at
a different time than the alleged identical issue; and 4) a hostile
environment has been proven with respect to Complaint 1 when the agency's
conduct is considered as a whole. The agency stands on the record and
requests that we affirm its final action implementing the AJ's decision.
ANALYSIS AND FINDINGS
Appeal 1
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides that the agency
shall dismiss a complaint or a portion of a complaint that states the
same claim that is pending before or has been decided by the agency or
Commission. Complainant filed his first formal complaint (Complaint
1), Agency No. FNP-99-068, alleging a hostile work environment.
Complainant then filed his third formal complaint (Complaint 3),
Agency No. FNP-99-064, on April 10, 1999, alleging disparate treatment.
Complainant asserts that he is raising a new issue in Complaint 3 because
different officials were involved in the incidents and the incidents
took place at different times. Despite complainant's assertions, the
Commission remains unpersuaded because the crux of both complainant's
complaints are identical in that they both concern: 1) denial of requests
to be designated Acting Division Chief; 2) lack of recognition from his
supervisors despite many letters of appreciation; 3) denial of use of a
government vehicle; and 4) denial of a flex-time schedule. The record
contains no evidence to indicate that the issues in Complaint 3 are
different from those previously alleged in Complaint 1. Therefore,
the Commission finds the agency's dismissal of allegations 5, 6, 7 and
10 in Complaint 3 was proper. Accordingly, the agency's final decision
with respect to Appeal 1 is AFFIRMED.
Appeal 2
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 does not
sit as a fact finder. Id. 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. A disputed 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 under Title VII, an AJ
may properly consider summary judgment only upon a determination that
the record has been adequately developed for summary disposition.
Based on our careful de novo review of the entire record before us,
the Commission finds that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws with respect to Complaint 1. We find that complainant failed to
present sufficient evidence to establish that the agency's actions created
a hostile work environment. To prevail on a harassment claim, complainant
must show that he was subjected to harassment because of discriminatory
factors. 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). We agree with the
AJ that the conduct cited by complainant did not constitute unlawful
harassment, in that, even taken together and assumed to be true, the
incidents did not create a hostile work environment such that it had a
direct effect on complainant's work performance or altered the conditions
of the workplace. Enforcement Guidance: Vicarious Employer Liability for
Unlawful Harassment by Supervisors, at p.2 (June 18, 1999), citing, Oncale
v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998). Furthermore, we
find that complainant did not establish that any of the agency's actions
were motivated by discriminatory animus toward complainant's age or sex.
With respect to Complaint 2, EEOC Regulation 29 C.F.R. � 1614.107(a)(1)
applies because Complaint 2 states the same claim that has been decided
by the agency or Commission. Complainant filed a formal complaint,
Agency No. FPN-97-076, on May 23, 1997, alleging discrimination on the
bases of sex, age and reprisal when on or about May 11, 1997, he was
not selected for a temporary detail to the position of Acting Chief of
Interpretation and Cultural Resource Management Division, which created a
hostile work environment. In a recommended decision issued on February
22, 1999, the AJ found that complainant failed to prove discrimination
(EEOC Complaint No. 170-98-8274X). Complaint 2 alleged discrimination
when complainant was denied the opportunity to apply for a 120-day
detail to the position of Acting Chief of Interpretation and Cultural
Resource Management Division, GS-12. Complainant argues that the two
incidents of discrimination are separated by four months and that the
AJ refused to allow statements or documentation regarding Complaint 2
into the record during the hearing for EEOC Complaint No. 170-98-8274X.
We remain unpersuaded, however, that the two allegations are different
merely because complainant filed the complaints four months apart.
We further note that, although the AJ refused to allow statements
or documentation regarding Complaint 2 into the record, the AJ has
discretion during a hearing to limit testimony on cumulative or irrelevant
matters. See Bobrick v. Department of Health and Human Services, EEOC
Request No. 05930763 (May 12, 1994). We find that the crux of these
two complaints are identical, and therefore, Complaint 2 is dismissed.
With respect to Complaint 3, the Commission finds that the AJ correctly
determined that complainant failed to prove that he was subjected to age,
race, sex or reprisal discrimination with regard to the matters alleged.
The Commission notes that while the AJ stated that complainant failed to
establish a prima facie case of age, race, sex and reprisal discrimination
because he did not show that he was treated differently than similarly
situated employees, complainant must only present evidence which, if
unrebutted, would support an inference that the agency's actions resulted
from discrimination. See O'Connor v. Consolidated Coin Caters Corp.,
517 U.S. 308 (1996); Enforcement Guidance on O'Connor v. Consolidated
Coin Caters Corp., EEOC Notice No. 915.002, n. 4 (September 18, 1996).
Nevertheless, the AJ correctly determined that the agency articulated
legitimate, nondiscriminatory reasons for its actions. With respect
to allegation 2, the PD to which complainant objected reflected the
duties of his position, and his old PD stated that he reported to a
branch chief. With respect to allegation 3, complainant's duties did
not rise to the level of complexity warranted to support a GS-12 grade.
With respect to allegation 4, complainant chose not to participate in
his performance standards until his PD was reviewed. With respect to
allegation 8, Supervisor II believed that complainant had completed
the report while under the supervision of Supervisor I, and complainant
never told Supervisor II that she needed to review it.<4> With respect
to allegation 9, the promotions given were part of the reorganization and
additional responsibilities were given to branch chiefs. With respect to
allegation 11, a moratorium was enforced by the Superintendent against
purchasing research materials because of structural problems in the
building.<5> After the agency articulated legitimate, nondiscriminatory
reasons for its actions, the burden shifted to complainant to show
that the articulated reasons were pretext for discrimination. Here,
complainant failed to present sufficient evidence to support an inference
that the agency's actions resulted from discrimination.
On appeal, complainant contends that the AJ erred when she failed to
sanction the agency by finding in his favor even though the agency was
granted two extensions after deadlines had passed and filed its Motion
for Summary Judgment one day late. Here, the complainant argues that
the AJ should have found in his favor when the agency failed to file
its Motion for Summary Judgment in a timely manner. However, despite
complainant's arguments to the contrary, the Commission is unpersuaded
that the AJ abused her discretion when she failed to sanction the
agency. In addition, we note that while complainant asserts that the
Superintendent sent an e-mail message to nineteen employees stating that
two other employees were unsuccessful in their EEO complaints, the record
does not indicate that any such action was taken against complainant.
Furthermore, although the Superintendent's action may have a chilling
effect on the filing of EEO complaints, complainant filed all three
of the present complaints before the Superintendent's e-mail message
was sent. We therefore discern no basis on which to disturb the AJ's
finding that complainant failed to prove that he was discriminated
against based upon his age, race, sex or reprisal. Therefore, the
agency's final decision with respect to Appeal 2 is AFFIRMED.
CONCLUSION
Accordingly, the Commission AFFIRMS the agency's final decisions with
respect to Appeal 1 and Appeal 2.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
___06-19-01_______________
Date
1 Complainant provided 20 specific examples of the alleged hostile work
environment in his complaint.
2 The numbering in Complaint 3 begins with allegation 2 in order to
remain consistent with the agency's numbering in its July 26, 1999
final decision.
3 Allegations 5, 6, 7 and 10 in Complaint 3 were not addressed by the
AJ because Appeal 1 was still pending before the Commission as of the
date of the AJ's decision.
4 We note that allegations 5, 6, 7 and 10 of this complaint were properly
dismissed, and therefore are not listed.
5 We note that although the agency's civil engineer stated that the
library did not have structural problems, the third floor of the building
in which the library was housed posed structural risks.