0120083503
10-24-2008
Miloslav Muller, Complainant, v. Ed Schafer, Secretary, Department of Agriculture, Agency.
Miloslav Muller,
Complainant,
v.
Ed Schafer,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120083503
Agency No. APHIS-2005-01347
Hearing No. 540-2007-00006X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's May 19, 2008 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.
At the time of his complaint, dated February 4, 2006, complainant
worked as a Veterinary Medical Officer, for the Animal and Plant
Health Inspection Services (APHIS) in the Albuquerque, New Mexico area.
Complainant alleged that the agency discriminated against him in reprisal
for prior protected activity when he was harassed and investigated
for alleged misconduct in July 2005.1 Following an investigation,
complainant requested a hearing before an EEOC Administrative Judge
(AJ). On April 9, 2008, the AJ issued a decision without a hearing,
finding that the agency did not discriminate against complainant.
The record shows that the agency initiated the investigation following a
complaint from a horse breeder of unprofessional conduct by complainant
during his inspection of the breeder's horses on June 7, 2004.2 The
investigation found no evidence to suggest misconduct by complainant,
and the matter was closed in December 2005. The AJ concluded that
complainant failed to establish that he was harassed and subjected to
a hostile work environment. We note that complainant did not show that
the investigation was connected to or based on his prior EEO activity.3
It is well-settled that harassment based on an individual's protected
status is unlawful, if it is sufficiently patterned or pervasive;
usually, however, a single incident or a group of isolated incidents
will not be regarded as discriminatory harassment. Frye v. Department
of Labor, EEOC Request No. 05950152 (February 8, 1996); Backo v. United
States Postal Service, EEOC Request No. 05960227 (June 10, 1996); see
also Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In this
matter, while complainant engaged in prior EEO activity, he has not shown
that the agency's actions were based on animus or taken in reprisal.
Further, we find that the investigation was not sufficiently severe
or pervasive to rise to the level of illegal harassment. See Cobb
v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997), citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)
(harassment is actionable if it is sufficiently severe or pervasive
to alter the conditions of the complainant's employment). Moreover,
complainant has not shown that the alleged 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.4 See Humphrey v. United States
Postal Service, EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. �
1604.11. Even considering his claim as one of disparate treatment,
we find that complainant failed to demonstrate pretext in response to
the agency's articulated reason.
The standard of review in rendering this appellate decision is de novo,
i.e., the Commission will examine the record and 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. See 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,
Chapter 9, � VI.A. (November 9, 1999).
Initially, we consider whether the AJ properly issued a decision without a
hearing on this record. The Commission's regulations allow an AJ to issue
a decision without a hearing when s/he finds that there are no genuine
issues of material fact. 29 C.F.R. � 1614.109(g). This regulation
is patterned after the summary judgment procedure in the Federal Rules
of Civil Procedure, Rule 56, and 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). The AJ may properly issue a decision
without a hearing only upon a determination that the record has been
adequately developed for summary disposition. See Petty v. Department
of Defense, EEOC Appeal No. 0120024206 (July 11, 2003).
After a review of the record in its entirety and consideration of
all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final decision,
because the AJ's issuance of a decision without a hearing was appropriate,
and the preponderance of the evidence of record does not establish that
discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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 (Z0408)
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
__10/24/2008________________
Date
1 Complainant withdrew his second claim that his duties were diminished.
2 The complaint was made to agency officials in agency headquarters and
was eventually referred to agency managers in APHIS.
3 Complainant contended that, after he was successful in obtaining relief
for an employee he represented in 1997, agency managers began to take
action against him. This prior activity, however, occurred too long ago
to establish a causal connection to the present matters. In general, to
demonstrate a causal connection using temporal proximity, the separation
between the employer's knowledge of the protected activity and the adverse
employment action must be very close. See Clark County School District
v. Breeden, 532 U.S. 268 (2001) (holding that a three-month period was not
proximate enough to establish a causal nexus); EEOC Compliance Manual,
Section 8, Retaliation, pp. 8-18 (there must be proof that the acting
agency official(s) took the action at issue because of complainant's
prior protected activity and sought to deter complainant or others).
4 See Enforcement Guidance: Vicarious Liability for Unlawful Harassment
by Supervisors, EEOC Notice No. 915.002 (June 18, 1999).
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0120083503
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120083503