01A12959
07-03-2002
Miguel M. Munoz, Complainant, v. John Ashcroft, Attorney General, Department of Justice (Immigration and Naturalization Service), Agency.
Miguel M. Munoz v. Department of Justice (Immigration and Naturalization
Service)
01A12959
July 3, 2002
.
Miguel M. Munoz,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice
(Immigration and Naturalization Service),
Agency.
Appeal No. 01A12959
Agency No. I-00-W013
DECISION
Miguel M. Munoz (�complainant�) worked as a Supervisory Detention
Enforcement Officer for the Department of Justice (Immigration and
Naturalization Service) (�the agency�) at Brown Field Station in or near
San Diego, California. In a formal equal employment opportunity (�EEO�)
complaint filed on October 27, 1999, complainant claimed that his first
and second line supervisors harassed him and gave him an inaccurate
and unfavorable performance rating because he had engaged in prior
protected EEO activity. More specifically, complainant alleged that
he had been a witness in previous EEO cases, that his superiors were
upset about such testimony, and that these agency officials therefore
rated him �Excellent� for the 1998-1999 rating period (i.e., instead of
�Outstanding�), and subjected him to a hostile work environment (e.g.,
by allegedly telling one of complainant's co-workers that complainant
would be detailed out of his current unit � or terminated � if the EEO
activity did not stop). In short, complainant was effectively claiming
that the agency had violated Title VII of the Civil Rights Act of 1964
(�Title VII�), as amended, 42 U.S.C. � 2000e et seq.
The agency investigated complainant's complaint, and issued a final
agency decision (�FAD�) on February 28, 2001, concluding that it had
not discriminated against complainant in any way. Complainant filed
a timely notice challenging this FAD. We � the United States Equal
Employment Opportunity Commission (�EEOC� or �this Commission�) � accepted
complainant's notice and docketed it as this appeal. We must now decide
whether to affirm or reject the agency's FAD. We are charged with
reviewing this FAD de novo (or �anew�). See 29 C.F.R. � 1614.405(a).
Accordingly, we have carefully reviewed the entire record before us in
our attempt to discern whether a preponderance of the evidence supports
any finding of illegal employment discrimination here. See 29 C.F.R. �
1614.405(a). We conclude that it does not.
As noted, complainant has raised a claim of retaliatory harassment.
However, as this Commission's guidance points out:
the anti-discrimination statutes are not a �general civility code.�
Thus, federal law does not prohibit simple teasing, offhand comments,
or isolated incidents that are not �extremely serious.� Rather, the
conduct must be �so objectively offensive as to alter the �conditions'
of the victim's employment.� The conditions of employment are altered
only if the harassment culminated in a tangible employment action or
was sufficiently severe or pervasive to create a hostile work environment.
EEOC Notice No. 915.002, Enforcement Guidance: Vicarious Employer
Liability for Unlawful Harassment by Supervisors (June 18, 1999) (web
version) (�Vicarious Liability Enforcement Guidance�), at 4 [internal
notes and citations omitted].
Complainant has asserted that the actions of agency officials created a
�hostile work environment.� The record before us does not support this
conclusion, though. To begin, we are not persuaded that all relevant
and allegedly �harassing� incidents transpired the way complainant
says they did.<1> Further, even if we assume that some or all of
the events complainant described did occur, these incidents were not
sufficiently severe or pervasive enough to have created a hostile work
environment. See, e.g.,EEOC Notice No. 915.002, Enforcement Guidance on
Harris v. Forklift Systems, Inc. (Mar. 8, 1994) (web version) (�Harris
Enforcement Guidance�), at 6 (providing that, to determine whether a
hostile work environment exists, we must look to the �totality of the
circumstances,� and consider �the nature of the conduct (i.e., whether
it was verbal or physical), the context in which the alleged incident(s)
occurred, the frequency of the conduct, its severity and pervasiveness,
whether it was physically threatening or humiliating, whether it was
unwelcome, and whether it unreasonably interfered with an employee's
work performance�). Therefore, we cannot hold the agency liable for
harassment-based discrimination on these facts.
We do not think the agency discriminated against complainant by
providing him the ostensibly unfavorable performance rating, either. This
allegation suggests that the agency engaged in retaliation-based disparate
treatment. In cases of this kind, where there is no direct evidence of
any illegal motive for the agency actions in question, an evidentiary
�burden of production� is placed initially on the complainant to put forth
a prima facie case of unlawful discrimination. The complainant may do
so by presenting facts which, if unexplained, reasonably give rise to an
inference of discrimination (i.e., that a prohibited consideration was
a factor in the relevant adverse employment action(s)). If complainant
successfully establishes such a prima facie case, the evidentiary burden
of production then shifts to the agency to articulate legitimate,
non-discriminatory reasons for its ostensibly objectionable conduct.
If and when the agency offers such a lawful explanation, the evidentiary
burden of production shifts (one last time) back to the complainant to
show that the explanation offered is but a pretext for the agency's true,
prohibited discriminatory intent. See McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Furnco Construction Corp. v. Waters, 438 U.S. 567
(1978); Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24
(1978); Texas Department of Community Affairs v. Burdine, 450 U.S. 248
(1981); United States Postal Service Board of Governors v. Aikens, 460
U.S. 711 (1983); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993);
and Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000).
Here, even if we assume for argument's sake that complainant did put
forth a prima facie case of reprisal-based disparate treatment (and the
agency does not dispute that he did), the agency responded accordingly.
That is, it articulated a legitimate, non-discriminatory reason for
giving him an �Excellent� performance rating.<2> Complainant failed to
prove that this facially legitimate, non-discriminatory explanation was
a pretext for retaliation. The preponderance of the evidence simply does
not support the notion that agency officials refused to rate complainant
�Outstanding� because he engaged in prior protected EEO activity.
Cf. St. Mary's Honor Center, 509 U.S. at 515, 519 (holding that �a
reason cannot be proved to be �a pretext for discrimination' unless it is
shown both that the real reason was false, and that discrimination was
the real reason� for the defendant's employment action, and noting that
�[i]t is not enough . . . to disbelieve the employer; the fact finder
must believe the plaintiff's explanation of intentional discrimination�).
For the foregoing reasons, the FAD in question is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if 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 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; see also EEO MD-110, at 9-18. 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 the
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with the 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)
Complainant has the right to file a civil action in an appropriate United
States District Court within ninety (90) calendar days from the date that
complainant receives this decision. If complainant files a civil action,
complainant 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 complainant's case in court. �Agency� or �department�
means the national organization, and not the local office, facility or
department in which complainant works. If complainant files a request
to reconsider and also files a civil action, filing a civil action will
terminate the administrative processing of the complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If complainant decides to file a civil action, and if complainant does
not have or cannot afford the services of an attorney, complainant may
request that the Court appoint an attorney to represent complainant and
that the Court permit complainant 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.; and 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 complainant's 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 entitled �Right to File A Civil Action.�
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 3, 2002
__________________
Date
1For example, one of complainant's co-workers had alleged that
complainant's second line supervisor said that he would send complainant
on a detail and/or terminate him if his EEO activity did not stop.
However, this same co-worker later recanted portions of this statement,
and clarified that the second line supervisor never did threaten to send
complainant away or fire him for EEO activity, specifically. Rather, the
co-worker subsequently said, the second line supervisor only threatened
to detail or terminate complainant for being insubordinate and causing
work place disruptions.
2Agency officials explained that complainant was rated �Excellent� instead
of �Outstanding� because, during the rating period in question, he had
several significant performance deficiencies, was less meticulous and
productive than he had been in the past, refused to follow supervisory
direction at times, and disrupted work place morale (e.g., by creating
racial tension with repeated off-hand remarks about the preferential
treatment allegedly being given to black supervisors).