01a03616
06-26-2001
Noshi Gerges, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Noshi Gerges v. Department of the Navy
01A03616
06-26-01
.
Noshi Gerges,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A03616
Agency No. 98-60087-007
Hearing No. 160-A0-8127X
DECISION
On April 12, 2000, Noshi Gerges (hereinafter referred to as complainant)
filed a timely appeal from the March 31, 2000, final decision of the
Department of the Navy (hereinafter referred to as the agency) concerning
his complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
The appeal is timely filed (see 29 C.F.R. � 1614.402(a)) and is accepted
in accordance with 29 C.F.R. � 1614.405. For the reasons that follow,
the agency's final action is AFFIRMED.
The issue presented in this appeal is whether the agency discriminated
against complainant on the basis of national origin (Egyptian) when he
was allegedly harassed and subjected to a hostile working environment
in May-June 1998.<1>
Complainant filed his formal complainant on September 23, 1998.
Following an investigation of his complaint, complainant requested a
hearing before an EEOC Administrative Judge (AJ). On March 14, 2000,
the AJ issued a decision without a hearing finding that the agency did
not discriminate against complainant. The agency issued a final order
agreeing with the AJ. Complainant has filed the instant appeal, without
substantive comment.
Complainant worked as a Chemist, GS-11, at the agency's facility in
Brunswick, Maine. In June 1998, complainant was issued a five-day
suspension for performance and conduct reasons, i.e., failure to follow
directions and to perform work assignments, lack of respect towards
his superiors, and his generally poor conduct and behavior, including
displays of a volatile temper.<2> In his complaint, he claimed that
his supervisors harassed him, i.e., his supervisors embarrassed him by
asking for "closed-door" meetings and issued numerous memoranda to him.
The agency, through complainant's supervisors, stated that he failed
to perform his work assignments and that memoranda, meetings, and other
actions were taken to address complainant's lack of performance.
The AJ found that the instant matter was appropriate for summary judgment,
holding that no genuine issues of material fact were in dispute.
In addressing the merits, the AJ applied the tripartite analysis
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
and found that complainant was not subjected to discrimination based
on national origin. The Commission's regulations allow an AJ to issue
a decision without a hearing when s/he finds that there is no genuine
issue of material fact or credibility after applying the proper legal
analysis.<3> 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.
Harassment of an employee based on his/her race, color, sex,
national origin, age, disability or religion is unlawful, if it is
sufficiently patterned or pervasive. Enforcement Guidance: Vicarious
Employer Liability for Unlawful Harassment by Supervisors, EEOC
Notice No. 915.002 (June 18, 1999); McKinney v. Dole, 765 F.2d 1129,
1138-1139 (D.C. Cir. 1985). To prevail on a claim, a complainant must
show that s/he was subjected to a hostile work environment because of
discriminatory factors, i.e., national origin. In assessing such claims,
the factfinder must examine such factors 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).
In addition, unless the conduct is severe, a single incident or group of
isolated incidents will not be regarded as discriminatory harassment.
Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982); see
Bloomer v. Department of Transportation, EEOC Petition No. 03980137
(October 8, 1999).
We find that the incidents cited by complainant, even when taken together,
do not rise to the level of illegal harassment. Further, the record
does not contain, nor has complainant presented, evidence of a pattern of
events sufficiently severe or pervasive to affect his work performance.
The record does not reveal that his supervisors acted on the basis of
his national origin; instead, we find that the agency's actions were in
accord with proper exercise of its managerial obligations and based on
legitimate considerations of personnel performance. We find therefore
that complainant was not subjected to discriminatory harassment or a
hostile work environment.
CONCLUSION
Accordingly, the agency's final action is AFFIRMED.
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
___06-26-01_______________
Date
1Complainant also claimed discrimination on the basis of reprisal
referring to whistle blowing activity, which is not within the purview of
the EEO statutes. This basis is properly dismissed from his complaint.
29 C.F.R. � 1614.107(a)(1).
2Complainant also filed a grievance with regard to the suspension,
but the grievance was denied.
3The 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.