Kenneth D. Napper, Complainant,v.Janet Napolitano, Secretary, Department of Homeland Security, (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity CommissionDec 4, 2009
0120093135 (E.E.O.C. Dec. 4, 2009)

0120093135

12-04-2009

Kenneth D. Napper, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Immigration and Customs Enforcement), Agency.


Kenneth D. Napper,

Complainant,

v.

Janet Napolitano,

Secretary,

Department of Homeland Security,

(Immigration and Customs Enforcement),

Agency.

Appeal No. 0120093135

Hearing No. 480200900173X

Agency No. HS08ICE005400

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's 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.

Complainant alleged that the agency discriminated against him on the bases

of race (Black) and reprisal for prior protected EEO activity under Title

VII when: 1) On March 26, 2008, a Supervisory Detention and Deportation

Officer verbally assaulted and threatened him with physical violence; and

2) on May 7, 2008, the Assistant Field Office Director verbally assaulted

and threatened him after he failed to attend a scheduled meeting.

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 requested

a hearing within the time frame provided in 29 C.F.R. � 1614.108(f).

On June 12, 2009, the AJ issued a summary decision finding no

discrimination. In reaching this decision, the AJ determined that even

if the two disagreeable interactions complainant had with his supervisors

rose to the level of aggrievement, he cannot prevail on his harassment

claim because these events, either individually or collectively, fail

to rise to the level of unlawful harassment protected by Title VII.

Most important, there is no evidence that any of the actions of agency

management were motivated by unlawful reasons. Complainant failed to

establish unlawful harassment. Complainant proffers no appeal statement.

As this is an appeal from a decision issued without a hearing, pursuant

to 29 C.F.R. � 1614.110(a), the agency's decision is subject to de novo

review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management

Directive 110, Chapter 9, � VI.A. (November 9, 1999). (explaining that

the de novo standard of review "requires that the Commission examine

the record without regard to the factual and legal determinations of the

previous decision maker," and that EEOC "review the documents, statements,

and testimony of record, including any timely and relevant submissions

of the parties, and . . . issue its decision based on the Commission's

own assessment of the record and its interpretation of the law").

Harassment of an employee that would not occur but for the employee's

race, color, sex, national origin, age, disability, religion or prior

EEO activity is unlawful, if it is sufficiently patterned or pervasive.

Wibstad v. United States Postal Service, EEOC Appeal No. 01972699

(Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39

(D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift

Systems, Inc. at 3, 9 (March 8, 1994). In determining that a working

environment is hostile, factors to consider are 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. See Harris v. Forklift Systems, Inc., 510

U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has

stated that: "Conduct that is not severe or pervasive enough to create an

objectively hostile work environment - an environment that a reasonable

person would find hostile or abusive - is beyond Title VII's purview."

Harris, 510 U.S. at 22 (1993).

To establish a claim of hostile environment harassment, complainant

must show that: (1) he belongs to 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 his 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. See Henson v. City of Dundee, 682 F.2d 897

(11th Cir. 1982). The harasser's conduct should be evaluated from the

objective viewpoint of a reasonable person in the victim's circumstances.

Enforcement Guidance at 6.

An employer is subject to vicarious liability for harassment when it is

"created by a supervisor with immediate (or successively higher) authority

over the employee." Burlington Industries, Inc., v. Ellerth, 524

U.S. 742, 118 S.Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524

U.S. 775, 118 S.Ct. 2275, 2292-93 (1998). When the harassment does not

result in a tangible employment action being taken against the employee,

the employer may raise an affirmative defense to liability. The agency

can meet this defense, which is subject to proof by a preponderance

of the evidence, by demonstrating: (a) that it exercised reasonable

care to prevent and correct promptly any harassing behavior; and (b)

that appellant unreasonably failed to take advantage of any preventive

or corrective opportunities provided by the agency or to avoid harm

otherwise. Burlington Industries, Inc., v. Ellerth, 118 S.Ct. at 2270;

Faragher v. City of Boca Raton, 118 S.Ct. at 2293; Enforcement Guidance:

Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice

No. 915.002 (June 18, 1999). This defense is not available when the

harassment results in a tangible employment action (e.g., a discharge,

demotion, or undesirable reassignment) being taken against the employee.

Here, complainant asserted that based on his statutorily protected

classes, his supervisors subjected him to a hostile work environment.

However, we find that complainant has not shown that he was subjected to

harassment in the form of unwelcome verbal or physical conduct involving

his protected classes, or the harassment complained of was based on

his statutorily protected classes. Further, complainant has not shown

that the purported harassment had the purpose or effect of unreasonably

interfering with the work environment and/or creating an intimidating,

hostile, or offensive work environment. While complainant has cited

two incidents where his supervisors have either inappropriately yelled

or taken actions that were either adverse or disruptive to him, we find

that complainant fails to show that these incidents were as a result of

unlawful discrimination.

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to affirm the agency's final order,

because the Administrative Judge's issuance of a decision without a

hearing was appropriate and a preponderance of the record evidence does

not establish that discrimination occurred.

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

December 4, 2009

__________________

Date

2

0120093135

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

4

0120093135