Ozzie L. James, JR, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 10, 2009
0120092520 (E.E.O.C. Nov. 10, 2009)

0120092520

11-10-2009

Ozzie L. James, JR, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.


Ozzie L. James, JR,

Complainant,

v.

Eric K. Shinseki,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120092520

Hearing No. 471-2008-00089X

Agency No. 200J-0506-2007-103795

DECISION

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

appeal from the agency's May 13, 2009 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, a cook, alleged that the agency subjected him to hostile

workplace discrimination based on race (Black) and reprisal for prior

protected EEO activity under Title VII when: 1) On March 3, 2007, his

supervisors began telling him that other employees were complaining

about the time he was taking away from the work area; 2) On July 6,

2007, a supervisor spoke to him about a disciplinary matter while in an

open setting with other employees around; 3) On July 29, 2007, he was

accused of returning late to work after lunch; 4) On August 2, 2007,

he was confronted about being absent from the workplace; 5) On August 3,

2007, his supervisors were checking up on his whereabouts and watching

him; 6) On August 3, 2007, he saw one of his supervisors standing around

most of the day watching his every move; 7) On August 6, 2007, he was

accused of signing out at the wrong time; 8) On August 7, 2007, his

supervisor issued him a proposed reprimand; and 9) On August 17, 2007,

his supervisor confronted him about not being in his assigned work area.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of her 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 April 27, 2009, the AJ issued a summary decision finding no

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

complainant could establish a prima facie case, the agency had articulated

legitimate, nondiscriminatory reasons for its actions. The AJ stated

that while complainant repeatedly argued that he was harassed by his

supervisors, the incidents mainly deal with complainant's absence from

his work assignment. Complainant's supervisors required complainant and

other employees to be at their work station to ensure that the work was

being done. These supervisors needed to know when staff was leaving the

work area so that the different work responsibilities could be filled and

they needed to know where the employees were located. Thus, they required

the employees to notify their supervisor or work leader when they were

leaving their work area except for the short breaks. When complainant

failed to comply with the policy and was absent from his work area on

several occasions, his supervisors addressed it with him. Although he

was issued a proposed reprimand, complainant was never disciplined and

did not lose any pay. In conclusion, the AJ found that the events

of which complainant complains, either individually or collectively

fail to rise to the level of unlawful harassment protected by Title

VII. Most importantly, there is no evidence that any of the actions

or decisions of agency management were motivated by unlawful reasons.

Complainant failed to establish that any of management's reasons for its

actions were pretextual or unworthy of belief. Complainant failed to

establish discrimination under either the theory of disparate treatment

or unlawful harassment. Complainant proffers no statement on appeal.

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, management continuously 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 various incidents where agency management has inappropriately

taken various 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

November 10, 2009

__________________

Date

2

0120092520

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

5

0120092520