0120083920
02-05-2009
Kenya V. Lynn, Complainant, v. Michael B. Mukasey, Attorney General, Department of Justice, Agency.
Kenya V. Lynn,
Complainant,
v.
Michael B. Mukasey,
Attorney General,
Department of Justice,
Agency.
Appeal No. 0120083920
Agency No. P20060218
Hearing No. 490-2007-00060X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's August 22, 2008 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 and subjected him to a hostile work
environment on the basis of race (African-American) when: (1) staff
tricked him into setting off an alarm; (2) staff hung up on him and
called him names when he called for assistance; (3) staff gave him an
incorrect "wakeup call list"; (4) a staff member asked for his keys to
the gymnasium and then left the gym doors unlocked; (5) a co-worker told
him that he heard others say he was trying to be a "big shot" and they
didn't want a "smart nigga" manning the unit; (6) an instructor said
he didn't think complainant was qualified to be a correction officer;
(7) an instructor deleted complainant's answers from his final exam;
(8) the Warden gave incorrect information about him in response to a
congressional inquiry; and (9) on May 5, 2006, he received a letter of
separation that stated he was terminated on April 6, 2006.
The EEOC Administrative Judge (AJ) issued a decision without a hearing
on the issue of complainant's termination (Claim 9), but permitted a
hearing with respect to complainant's hostile work environment claim
(Claims 1-8).
Termination Claim
We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. 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, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Finally, an AJ should not rule in favor of one party without holding
a hearing unless he or she ensures that the party opposing the ruling
is given (1) ample notice of the proposal to issue a decision without
a hearing, (2) a comprehensive statement of the allegedly undisputed
material facts, (3) the opportunity to respond to such a statement, and
(4) the chance to engage in discovery before responding, if necessary.
According to the Supreme Court, Rule 56 itself precludes summary
judgment "where the [party opposing summary judgment] has not had the
opportunity to discover information that is essential to his opposition."
Anderson, 477 U.S. at 250. In the hearing context, this means that the
administrative judge must enable the parties to engage in the amount
of discovery necessary to properly respond to any motion for a decision
without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an
administrative judge could order discovery, if necessary, after receiving
an opposition to a motion for a decision without a hearing).
The courts have been clear that summary judgment is not to be used as
a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st
Cir. 1975). The Commission has noted that when a party submits an
affidavit and credibility is at issue, "there is a need for strident
cross-examination and summary judgment on such evidence is improper."
Pedersen v. Department of Justice, EEOC Request No. 05940339 (February
24, 1995).
The AJ concluded that the agency articulated a legitimate,
non-discriminatory reason for terminating complainant. Specifically, the
agency presented evidence in support of its assertion that complainant
was terminated before the expiration of his probation period because
he failed to score above 70% on the tests given during his training.
The AJ noted that complainant contends that pretext is evident from
the fact that the training official (TO) was using a computer when
complainant was taking the second test. Complainant asserts that TO must
have deleted or changed complainant's answers to the tests. However,
the AJ noted that this assertion was mere speculation on complainant's
part and complainant did not proffer any evidence which countered the
agency's evidence that TO did not have access to the answer forms on
the computer and that only the Chief of Instructional Technology (ITC)
and the Computer Systems Manager (CSM) had administrative access to the
answer forms. The AJ also noted that complainant does not contest that
he received a cumulative score of less than 70% and does not proffer
evidence showing that the agency did not uniformly enforce this score
requirement. Lastly, the AJ noted that complainant has not proffered
any other evidence which shows that the agency's reason for terminating
him prior to the expiration of his probation period is not entitled to
credence and was a pretext for race discrimination.
Hostile Work Environment Claim
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.
Following a hearing, the AJ concluded that although complainant is
protected by Title VII by virtue of his race, and was subjected to
statements and conduct which he found offensive, he did not present
evidence which established that the complained-of statements and conduct
were based on his race. Specifically, the AJ noted that none of the
complained-of statements were race-based on their face. Further,
no other evidence was submitted establishing that the complained-of
actions would not have occurred but for complainant's race. The AJ
also noted that complainant was unable to identify by name any of the
individuals involved in any of the alleged harassment. Specifically,
complainant could not identify the names and/or races of: (1) any of the
individuals in the Control Unit who hung up on him or called him names;
(2) the individual who called him and directed him to call "extension
222"; nor (3) the individual who gave him the incorrect wake-up list.
Further, complainant was not able to identify the Hispanic operational
lieutenant who directed him to give his keys to the recreational
officer. Thus, the AJ concluded that it is unknown who is alleged to
have discriminated against complainant and whether their motives were
based upon complainant's race.
In addition, the AJ noted that complainant offered no additional
evidence to reliably support his assertion that the alleged harassment
was based on his race. First, complainant asserted in an unsworn
statement that certain inmates had told him they overheard officers
speaking negatively about complainant due to his race. However,
the AJ noted that complainant did not testify about this matter at
the hearing, and he could not identify the inmates who allegedly told
him the information, or the officers who allegedly make the comments.
The AJ found complainant's unsworn hearsay statement to be unreliable and
not probative of whether the alleged harassment was based on his race.
Complainant's only other evidence that may have supported any racial
motives was expressly withdrawn by complainant at the hearing. Initially,
complainant alleged that he was told by a fellow correctional officer that
other officers had verbally expressed racial bias towards him. However,
when given the opportunity to present the evidence at the hearing,
complainant withdrew the incident as part of his harassment claim.
On appeal, complainant claims that the AJ failed to review all the
evidence pertaining to the alleged incidents of harassment. Specifically,
he claims that the AJ failed to question a witness (W1) at the hearing
as to the identity of the individual who "played a prank" on him by
tricking him into calling "222" for assistance. The record reveals,
however, that complainant was given the opportunity to question W1 at
the hearing, yet failed to question the witness as to the identity of
the individual who allegedly played a prank on him.
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 final agency order because
the Administrative Judge's ultimate finding, that unlawful employment
discrimination was not proven by a preponderance of the evidence, is
supported by the record.
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 5, 2009
Date
Date
2
0120083920
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120083920