0120083752
01-06-2009
Michael Saunders, Complainant, v. Michael O Leavitt, Secretary, Department of Health and Human Services, Agency.
Michael Saunders,
Complainant,
v.
Michael O Leavitt,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 0120083752
Agency No. NIHCC070002
Hearing No. 531-2007-00205X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's August 5, 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
Complainant alleged that the agency discriminated against him on the
bases of race (Black), sex (male) and age (53) when in October 2006, he
was subjected to harassment by his supervisor that included inappropriate
sexual comments.
We must first determine whether it was appropriate for an EEOC
Administrative Judge (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).
AJ'S DECISION
The AJ rendered the following conclusions based upon the undisputed
facts in the record. Complainant asserts that on October 6, 2006,
his supervisor (S1) (male) bumped his shoulder at the loading dock.
On that same day, complainant asserts that S1 stated to him in the
break room "he was sick and tired of me eating bananas and nuts every
morning... and that if I wanted bananas and nuts he would give me some."
Complainant further asserts that after making the comment, S1 "looked
down at his crotch area." According to complainant, four days later,
on October 10, 2006, S1 told him he has "pretty red lips." Complainant
argues that these comments and actions were unwelcome and were harassing
on the bases of his sex and age.
The AJ concluded that complainant cannot prevail in his claim. In her
decision, the AJ explained that even assuming that the three incidents
occurred in October 2006, the AJ found that complainant has proffered
no evidence to demonstrate that the harassing conduct was in any way
related to his age.
With respect to complainant's gender claim, the AJ concluded that the
break room incidents on October 6 and 10, 2006, reasonably could have been
motivated by complainant's gender. The AJ concluded that the "banana
and nuts" comment was an offensive statement that had sexual implications.
Likewise, the AJ concluded that the "pretty red lips" reference may also
have had sexual implications. The AJ noted that while complainant did
not proffer any evidence to show that the shoulder bumping incident had
anything to do with his gender, she, nevertheless, considered the loading
dock incident a part of the comments made by S1 in the break room.
The AJ concluded that the encounters between S1 and complainant, while
disturbing, do not rise to the level sufficient to sustain a harassment
complaint. Specifically, the AJ concluded that such incidents are neither
severe nor pervasive. The AJ noted that the shoulder bumping incident
occurred on October 6, 2006. The comments regarding "bananas and nuts"
also happened on that same day. The "pretty red lips" comment occurred
four days later on October 10, 2006, and were repeated four times on that
same day. The AJ further noted that the incidents at issue in this case
occurred over a period of two days. There was no evidence proffered
by complainant to show that S1's offensive conduct continued after the
incidents on the two days. Lastly, the AJ noted that it is undisputed
that the agency promptly investigated complainant's harassment charges
and counseled S1 over his conduct. Complainant proffered no evidence
to show that any more physical encounters1 occurred or that S1 made any
further sexually-based comments. Accordingly, the AJ concluded that
complainant's harassment claim must fail.
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.2
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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
January 6, 2009
Date
1 The undisputed record shows that the bumping incident did not cause
any physical harm to complainant.
2 While not raised by complainant in his appeal, we note that the AJ
did not address the basis of race-based harassment in her decision.
We note that the record is devoid of evidence of race-based harassment.
Accordingly, for reasons set forth above, such claim must also fail.
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0120083752
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120083752