0120111059
09-13-2012
Richard Crowson, Complainant, v. Hillary Rodham Clinton, Secretary, Department of State, Agency.
Richard Crowson,
Complainant,
v.
Hillary Rodham Clinton,
Secretary,
Department of State,
Agency.
Appeal No. 0120111059
Hearing No. 570-2008-00175X
Agency No. DOSF08606
DECISION
On December 9, 2010, Complainant filed an appeal from the Agency's November 5, 2010 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. The Commission deems the appeal timely and accepts it for de novo review 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 an Engineer in the Agency's Overseas Buildings Office of the Facilities Maintenance Division, located in Washington, DC. On August 7, 2006, Complainant filed an EEO complaint alleging that since February 2004, his co-worker (CW) subjected him to retaliatory harassment characterized by, but not limited to, threats and false accusations. At the conclusion of the investigation, the Agency provided Complainant 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. Over Complainant's objections, the AJ assigned to the case granted the Agency's July 15, 2008, motion for a decision without a hearing and issued a decision on September 8, 2010. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
MATERIAL FACTS
In December 2003, Complainant began complaining about CW causing a "hostile work environment" for many employees in the Overseas Buildings Office. Complainant described CW as a "one of the most prolific retaliators he has ever known" and that he was convinced that CW would try to damage his reputation if Complainant exposed his job-related errors. Complainant had also noted that an Agency contractor (AC) informed him that he should "watch his back" because someone in his group was "after him." Complainant believed that CW was the person he was being warned about. The record supports the finding that many employees in the Overseas Buildings Office considered CW to be a "bully."
On February 5, 2004, Complainant provided testimony in connection with an EEO complaint filed by CW. This testimony did not support CW's claims. Complainant's February 5, 2004 statement was included in the Report of Investigation, a copy of which CW received. In July 2005, CW was detailed to another Branch in the Overseas Buildings Office. He returned from his detail in May 2006, but was not placed back into the same program as Complainant.
ANALYSIS AND FINDINGS
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.
We agree with the AJ and conclude that the record does not establish a connection between CW's conduct and Complainant's protected EEO activity. The record supports the conclusion that CW's hostility toward Complainant in fact began before Complainant engaged in any protected activity. In addition, the testimonial and documentary evidence in the record indicates that CW's hostility toward Complainant was rooted in personal animosity.
We disagree with Complainant's assertion that certain email exchanges with CW provide evidence of retaliatory animus. For example, Complainant states that on July 2, 2004, CW told him as long as he didn't "cross his circle of danger," that they would not have a problem. Complainant's version of that conversation includes no reference to Complainant's protected activity. Similarly, Complainant cites an August 4, 2004 email communication from CW informing Complainant that he no longer wanted to "see any of [Complainant's] concerns on a project that he was doing." At the end of the email, CW also informs Complainant that he filed a request for information under the Freedom of Information Act, as he was concerned about "certain actions." Again, this email exchange does not reference Complainant's EEO activity. Accordingly, we agree with the AJ and conclude that the evidence presented by Complainant is not sufficient to establish that CW's actions were motivated retaliatory animus.
CONCLUSION
Accordingly, based on a thorough review of the record, we AFFIRM the Agency's final action adopting the AJ's finding that Complainant failed to establish unlawful retaliation.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
September 13, 2012
__________________
Date
2
01-2011-1059
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013