0120090946
06-30-2009
Stephen C. Letares, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Stephen C. Letares,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120090946
Hearing No. 520200800212X
Agency No. HS07ICE001994
DECISION
On January 1, 2009, complainant filed an appeal from the EEOC
Administrative Judge's (AJ) decision that became the agency's final
decision when the agency failed to timely issue a decision either adopting
or rejecting the AJ's decision. The decision concerns complainant's 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. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Senior Special Agent at the agency's Law Enforcement Support Center
in Williston, Vermont. On August 26, 2007, complainant filed an EEO
complaint alleging that he was discriminated against on the bases of sex
(male) and reprisal for prior protected EEO activity under Title VII
when:
1. Since January 2006, a coworker (CW: female) subjected complainant to
a hostile work environment when she sent him sexually explicit emails,
bought him unwanted gifts, and made suggestive remarks and threatening
comments;
2. On September 4, 2007, a management official (RMO1:male) refused to
acknowledge complainant's previously approved leave for that day and
subsequently urged him to submit false time and attendance paperwork;
3. On or about April 19, 2007, complainant was counseled in response to
his EEO activity, and was accused of creating a hostile work environment;
and
4. In April 2007, complainant's previously approved leave for Memorial
Day weekend was cancelled.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing and the AJ held a hearing on July 30, 2008 and
issued a decision on October 3, 2008. When the agency failed to issue
a final order (FAD) within forty days of receipt of the AJ's decision,
the AJ's decision finding that complainant failed to prove that he was
subjected to discrimination as alleged became the agency's final action
pursuant to 29 C.F.R. � 1614.109(i).
Complainant argues on appeal that the AJ erred in a number of ways.
Complainant contends that the AJ failed to consider documentary evidence
supporting complainant's arguments, and that the AJ improperly admitted
irrelevant and inflammatory evidence. In addition, complainant argues
that the AJ erred in finding that an email sent to complainant was not
evidence of sexual harassment because it had also been sent to others
in the office of both sexes. Finally, complainant argues that the AJ
erred in failing to address testimony favorable to complainant.
On appeal, the agency argues that the AJ's decision and the FAD1
should be affirmed. The agency argues that simply because the AJ did
not address evidence supporting complainant's arguments does not mean
that the AJ failed to consider such evidence. In addition, the agency
argues that evidence provided by the agency addressing complainant's
credibility in an unrelated matter was properly considered by the AJ
to determine complainant's credibility in the matters at hand herein.
The agency next contends that the AJ properly determined that complainant
failed to show a nexus between his protected class and a harassing email.
Finally, as regards complainant's argument that the AJ failed to address
testimony favorable to complainant, the agency argues that there is no
evidence the AJ failed to consider the evidence, and further that the
substantive content of such testimony, that complainant's pre-approved
leave was subsequently rescinded, was not in dispute.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
The AJ found that complainant failed to establish a prima facie case of
harassment because the alleged actions were not so severe or pervasive
as to alter the conditions of complainant's employment and create a
hostile work environment, and that assuming arguendo that complainant
established a prima facie case, the agency took immediate and appropriate
remedial action. The record reveals that on January 27, 2006, CW sent
a lengthy and argumentative email that contained the following "Its bad
enough that you led people to believe that you and I slept together,
(which we didn't) now you're trashing me. You take the prize for
a-holes." Report of Investigation (ROI) Exhibit 6, p. 29, and "I turned
down your offer to spend the night with you" Id. The AJ noted that
the agency promptly counseled CW within two days of being notified of
this incident. The next incident was not until June 26, 2006 when CW
sent a joke email to numerous coworkers including complainant, about why
someone over 60 would make a better soldier than someone aged 18 years
old. Among the reasons listed, the most egregious was the following:
"researchers say 18 year olds think about sex every 10 seconds. Old guys
only think about sex a couple of times a day," Id., p. 34. The agency
issued CW a letter of admonishment after this incident.
The AJ noted that complainant said that on April 10, 2007, he learned
from a co-worker that CW had said that she hoped complainant would
get killed in an airplane accident. See Hearing Transcript, p. 48.
In addition, complainant cited as an example of sexual harassment the
fact that CW bought him unwanted gifts of food. Given the above, we find
that complainant failed to establish a prima facie case of harassment
and further, that even assuming arguendo that complainant established a
prima facie case of harassment; the agency took prompt and appropriate
remedial action. Regarding complainant's argument on appeal that the
AJ erred in finding that the June 26 email was gender neutral because
it was sent to members of both sexes, we find the AJ's alleged error to
have been harmless because even assuming that the email had been sent to
complainant alone, it's contents were not so sexual in nature to be able
to find that all of the incidents together were so severe or pervasive
as to alter the conditions of complainant's employment, and furthermore,
the agency took prompt and appropriate remedial action once informed of
CW's actions.
As regards the remaining allegations, the AJ found that the agency
articulated legitimate, nondiscriminatory reasons for its actions.
With regards to claims 2 and 4, the denial of leave claims, the AJ
found that agency officials said that complainant was denied leave
because he was not entitled to leave on the dates in question because
he had already received holiday pay for those dates and employees were
entitled to either holiday leave or holiday pay for work on those dates,
but not both. See AJ's Decision, p. 14. We find the AJ's finding to
be supported by substantial evidence. See HT, pp.223-238 and 278-282.
As regards claim 3, when complainant was counseled on or about April 19,
2007, an agency memorandum to complainant states that complainant was
counseled because he had engaged in a verbal altercation with a coworker
and had raised his voice. See Agency Exhibit 1, p. 3. Complainant has
not met his burden of establishing, by a preponderance of the evidence,
that the agency's reasons for its actions with regards to claims 2, 3,
and 4 are a pretext for discrimination.
As regards complainant's argument that the AJ failed to consider
documentary and testimonial evidence favorable to complainant, we note
that simply because the AJ failed to mention every piece of evidence
presented by either side does not indicate that the AJ failed to consider
such evidence. As regards complainant's argument that the AJ admitted
irrelevant and inflammatory evidence, we note initially that an AJ has the
power to regulate the conduct of a hearing, see 29 C.F.R. � 1614.109(e).
We find that the AJ's admission of the evidence in question was not so
unreasonable as to constitute an abuse of discretion since the AJ used
it to evaluate complainant's credibility with regards to his testimony
about the harassment allegations. Since we find that, even assuming
the truth of all of complainant's statements, the actions complained
of were insufficiently severe as to create a hostile work environment,
and that the agency took prompt and appropriate remedial action, the AJ's
admission of such evidence relating to credibility was harmless error.
Based on a thorough review of the record and the contentions on
appeal, including those not specifically addressed herein, we find that
complainant has not met his burden of establishing, by a preponderance of
the evidence, that discrimination occurred. We therefore AFFIRM the FAD.
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
June 30, 2009
__________________
Date
1 The agency issued a FAD on December 1, 2008.
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0120090946
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090946