01a42914
02-23-2005
Reginald Burgesslavelle, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.
Reginald Burgesslavelle v. Department of Defense (Defense Finance &
Accounting Service)
01A42914
February 23, 2005
.
Reginald Burgesslavelle,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Finance & Accounting Service),
Agency.
Appeal No. 01A42914
Agency No. DFASINN999038, DFASINN999039
Hearing No. 100-A1-7309X
DECISION
Complainant filed this appeal with the Commission from the February 28,
2004 agency decision, implementing the February 17, 2004 decision of
the EEOC Administrative Judge (AJ) finding no discrimination.
Complainant, an account technician, alleged that he was discriminated
against on: (1) the bases of race (Black) and color (black) when members
of complainant's supervisory chain subjected complainant to continual
harassment which included inappropriate racial comments, verbally
abusive threats of physical violence and other acts of harassment
during the period December 1996 through August 1998, which resulted
in his experiencing mental problems; and (2) on the basis of reprisal,
when on January 14, 1999, and February 11, 1999, complainant received two
annual ratings of "successful" which contained alleged derogatory remarks.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an AJ.
The AJ issued a decision without a hearing (summary judgment), finding
no discrimination.
The AJ concluded that complainant failed to establish a sufficiently
severe or pervasive set of actions so as to alter the conditions of his
employment. The AJ noted that a single racial remark, the delayed receipt
of complainant's appraisals, and incidents regarding complainant's use of
sick leave and office computers for personal purposes were insufficient
to qualify as severe or pervasive.
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, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
An objectively hostile or abusive work environment exists when a
reasonable person would find it hostile or abusive and the complainant
subjectively perceives it as such. To determine whether a work
environment is objectively hostile or abusive, the trier of fact
must consider all of the circumstances, including the following: the
frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee's work performance.
Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). Accordingly,
harassment is actionable only if the harassment to which the complainant
has been subjected to was sufficiently severe or pervasive to alter the
conditions of complainant's employment.
The record reveals that complainant alleged that his first level
supervisor (Supervisor A) made negative comments about Black men being
paired with White women and that Supervisor A's remarks worsened when
Supervisor A found out that complainant's wife was a White European;
that Supervisor A snooped around complainant's office when he was no
longer complainant's first level supervisor and reported complainant to
Supervisor B; that Supervisor A falsely accused complainant of stealing
government time and abusing the government workplace; and that Supervisor
A smoked in complainant's office, although smoking was prohibited and
complainant did not smoke. Complainant also alleged that Supervisor B
gave him a letter of counseling for not calling in when he was sick and
Supervisor C told him not to use the only computer, although Supervisor C
did not say anything to other employees using the computer. Complainant
further alleged that a coworker verbally and physically threatened him.
The record contains complainant's evaluations. On all the evaluations,
overall performance could be rated only as successful, fair, or
unsuccessful from a level 1 through a level 5. On his evaluation for
the rating period from February 1, 1996 through January 31, 1997,
which complainant signed on June 23, 1997, complainant received an
overall rating of successful, with a level 1 rating. In the applicable
areas of technical competence, adaptability and initiative, working
relationships and communications, and responsibility and dependability,
complainant received an excellent rating. Complainant's evaluation
for the period February 1, 1996 through January 31, 1997, was signed by
complainant on February 11, 1999. Complainant's overall performance was
rated successful, at a level 2. In the area of technical competence,
complainant was rated as successful, with the notation that complainant's
production was lowest on the team but that he was improving. In the
area of responsibility and dependability, complainant received a
successful rating with the notation that he was usually punctual.
In an evaluation signed by complainant on January 14, 1999, for the
rating period February 1, 1997 through January 31, 1998, complainant
received an overall performance rating of successful, with a level of 2.
The record contains data for the performance ratings given by Supervisor
A and Supervisor D to seven account technicians, from May 1, 1995 through
January 31, 1998. Only complainant received a level 2, during this
time period. The record also contains the affidavit of Supervisor D.
She stated that she did not know why complainant's evaluations were not
completed in the January/February time frames as other employees and
that she believed complainant's evaluations were lost. In his affidavit,
Supervisor B stated that complainant did not do exceptional work but he
considered him above average. Supervisor B also stated that complainant
was unable to keep up with the workload during the time he supervised
complainant and that complainant did not come in to fix the system on
a few occasions when he was called during the night. The record also
reveals that complainant was counseled on his productivity.
The Commission finds that the grant of summary judgment was appropriate,
as no genuine dispute of material fact exists. Viewing the facts in a
light most favorable to complainant and considering all complainant's
claims to be true, the Commission finds that the incidents complained of
were not sufficiently severe or pervasive so as to have created a hostile
work environment. Even if the incidents in the complaint comprised a
hostile work environment, complainant has failed to show that the agency's
actions were motivated by discriminatory animus towards complainant's
protected classes. Similarly, complainant has failed to show that the
evaluations he received were based on reprisal.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
February 23, 2005
__________________
Date