0120140389
09-01-2016
Arnold C.,1 Complainant, v. Jacob J. Lew, Secretary, Department of the Treasury (Bureau of Engraving and Printing), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Arnold C.,1
Complainant,
v.
Jacob J. Lew,
Secretary,
Department of the Treasury
(Bureau of Engraving and Printing),
Agency.
Appeal No. 0120140389
Hearing No. 570-2013-00090X
Agency No. BEP-12-0402-F
DECISION
On November 1, 2011, Complainant filed an appeal from the Agency's September 25, 2013, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are: (1) whether the Equal Employment Opportunity Commission Administrative Judge's (AJ) issuance of a decision without a hearing was appropriate; and
(2) whether Complainant established that the Agency discriminated against him on the bases of race (African-American), national origin (Jamaican), color (dark brown), and disability (physical) in connection with his non-selection, his denial of training, and other negative conduct.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Information Technology (IT) Specialist, GS-2210-13, at the Agency's Chief Information Officer Directorate, Office of Enterprise Solutions, Applications Project Management (APM) Division, in Washington, D.C.
Complainant began working for the Agency in May 2009. From 2009 to 2012, Complainant's first-level supervisor was the APM Division Manager (FS1 - Caucasian, American, white). After FS1 retired in 2012, Complainant's first-level supervisor was the Enterprise, Strategic Planning and Management (ESPM) Division Manager (S1 - African-American, American, medium to dark complexion). At all times, Complainant's second-level supervisor was the Office Chief (S2 - Caucasian, German/Irish/American Indian, light complexion).
Non-Selection
In July 2011, Complainant applied for the position of IT Specialist, GS-2210-14, advertised under vacancy announcement number 2011-079D. There were four vacancies for the position, which was located in the ESPM Division. The vacancy announcement stated:
The position is responsible for providing guidance and assistance on major Bureau-wide efforts in the analysis, design, development and implementation of highly complex automated information systems and applications for IT operational activities. The position is responsible for the technical oversight and direction of major IT projects that significantly impact Bureau components.
. . .
Your application will be evaluated in the following areas: Ability to deliver enterprise wide IT projects impacting multiple departments and/or organizational units; Ability to motivate and lead a matrix project management team with diverse technical and business skills disciplines involved in diverse information technology; . . . Ability to lead and accomplish work through others (i.e., team building, conflict management, cultural awareness, strategic thinking, technology management, and political savvy.) and Ability to communicate in writing.
Human Resources issued a certificate with 130 candidates to S1, who was the selecting official. In or around October 2011, S1 interviewed seven candidates, including Complainant. S1 selected four candidates (SE1 - Caucasian, German/American Indian, white; SE2 - African-American, national origin unknown, black; SE3 - Caucasian, national origin unknown, white; and SE4 - African-American, national origin unknown, black), but only SE1 eventually began working in the position.2 In or around February 2012, S1 informed Complainant about his non-selection.
Denial of Training
In October or November 2011, Complainant requested to attend a R12 Oracle Applications System Administrator Fundamentals Course, costing $4,000, from February 27 to March 2, 2012. On November 15, 2011, S2 denied Complainant's request, indicating that the cost of $4,000 was unreasonable and the training was not directly required for his position.
On March 22, 2012, Complainant requested to attend an Oracle Database 11g Upgrade Workshop, located in Raleigh, North Carolina, on March 28, 2012. Later that day, S1 denied Complainant's request, indicating that he should try to find training in the Washington, D.C. area.
Negative Conduct
Complainant alleged that S1 and S2 engaged in negative conduct towards him.
First, Complainant averred that S2 told FS1, on June 14, 2011, to give him a negative mid-year progress review. In contrast, S2 and FS1 both averred that S2 did not make such a comment. Complainant acknowledged that his mid-year progress review was not negative, but maintained that it was because FS1 refused to listen to S2. Complainant's mid-year progress review, conducted on June 30, 2011, included the following comments from FS1: "Great job on converting Maximo from 6.2 to 7.1 at both locations. WIN 7 work is good. Need to address training requirements and other elements as noted above before the end of the rating period."
Second, Complainant averred that S1 and S2 told him, on or about July 20, 2011, that he would not be allowed to telework when he returned from his third surgery. In contrast, S1 averred that he did not make such a comment, Complainant's schedule since January 2011 included telework on Mondays and Fridays, and Complainant could telework other days of the week with advance notice. Similarly, S2 averred that he did not make such a comment, Complainant normally teleworked two days a week, and Complainant had been teleworking for a month due to an accommodation issue. Complainant acknowledged that he had teleworked since management's comments and was currently teleworking five days a week on a temporary basis.
Third, Complainant averred that S1 told him, in or around July 2011, not to apply for the GS-14 IT Specialist position because he was not qualified and would never be selected. In contrast, S1 averred that he did not make such a comment.
Fourth, Complainant averred that S1, on six occasions from November 2011 to March 2012, undermined his point of view to others during meetings by disagreeing with his approaches or recommendations. In contrast, S1 averred that he may have spoken over Complainant during meetings, but not for the purpose of undermining his point of view.
Fifth, Complainant stated in his formal complaint that, on or about February 23, 2012, S1 told him that other employees possessed superior project management skills and abilities. In contrast, S1 averred that he did not make such a comment but had asked Complainant to take on some additional project management training.
Sixth, Complainant stated in his formal complaint and declaration that, on or about February 23, 2012, S1 and S2 credited other employees with tasks he had completed on several projects. Specifically, Complainant stated that he was the project manager for the Public Sales project and the TRIRIGA project, but that those projects were now assigned and credited to other employees. In contrast, S1 and S2 averred that Complainant had performed work for the Public Sales project, but that the project had always been managed by another employee. In addition, S1 and S2 averred that Complainant was initially the TRIRIGA project manager, but that another employee had taken over the role.
EEO Complaint
On April 26, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), national origin (Jamaican), color (dark brown), and disability (physical) when:3
1. In or around February 2012, S1 did not select him for the position of IT Specialist, GS-2210-14, advertised under vacancy announcement number
2011-079D;
2. S1 and S2 denied his training requests:
a. On November 15, 2011, S2 denied his request to attend the R12 Oracle Applications System Administrator Fundamentals course; and
b. On March 22, 2012, S1 denied his request to attend the Oracle 11g Update Workshop;
3. S1 and S2 engaged in negative conduct towards him:
a. On June 14, 2011, S2 told FS1 to give him a negative
mid-year progress review;
b. On or about July 20, 2011, S1 and S2 told him that he would not be allowed to telework when he returned from his third surgery;
c. In or around July 2011, S1 told him not to apply for the GS-14 IT Specialist position because he was not qualified and would never be selected;
d. On six occasions from November 2011 to March 2012, S1 undermined his point of view to others during meetings;
e. On or about February 23, 2012, S1 told him that other employees possessed superior project management skills and abilities; and
f. On or about February 23, 2012, S1 credited other employees with tasks he had completed on several projects.
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 AJ. Complainant timely requested a hearing. When Complainant did not object, the AJ granted the Agency's
June 4, 2013, motion for a decision without a hearing and issued a decision without a hearing on September 17, 2013. In her decision, the AJ found that Complainant did not prove that the Agency discriminated against him as alleged.
First, the AJ found that the Agency did not subject Complainant to disparate treatment in connection with his non-selection and his denial of training. Specifically, the AJ found that the Agency articulated the following legitimate, nondiscriminatory reasons for its actions:
(1) Complainant lacked the level of large-scale project management experience that the selectees possessed, lacked the level of management experience with private industry that the selectees possessed, and did not perform as well in his interview; and (2) the training was not pertinent to Complainant's job duties or was outside the Washington, D.C. area. In so finding, the AJ cited S1's declaration, S2's declaration, and the candidates' applications. Moreover, the AJ found that Complainant did not prove, by a preponderance of the evidence, that the Agency's reasons were a pretext for discrimination. In so finding, the AJ noted that, despite the fact that Complainant's EEO complaint alleged discrimination on the bases of race, national origin, color, and disability, Complainant had opined, under oath during his deposition, that none of those attributes factored into his non-selection or his denial of training. The AJ noted that, according to Complainant, those decisions by the Agency instead stemmed from other motivations, such as envy of his intelligence and professional jealousy. The AJ emphasized that, although such nondiscriminatory considerations may be inappropriate, the statutes enforced by the EEOC did not prohibit employment decisions based on those nondiscriminatory motivations.
Second, the AJ found that the Agency did not subject Complainant to hostile work environment harassment in connection with his non-selection, his denial of training, and other negative conduct. Specifically, the AJ found that the Agency's actions, when considered in the aggregate, were not sufficiently severe or pervasive to create an abusive working environment for Complainant.
The Agency subsequently issued a final order fully implementing the AJ's decision. Complainant then filed the instant appeal. Complainant did not submit a timely statement or brief in support of his appeal.4
ANALYSIS AND FINDINGS
Standard of Review
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 9, � VI.B (Aug. 5, 2015) (providing that an AJ's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo).
This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See EEO MD-110, Ch. 9, � VI.A. (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 the Commission "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").
AJ's Issuance of a Decision Without a Hearing
We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. 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, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the AJ must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
Upon review, we find that there is no genuine issue of material fact presented here. The record has been adequately developed, Complainant was given ample notice of the Agency's motion for a decision without a hearing, he was given a comprehensive statement of the allegedly undisputed material facts, he was given the opportunity to respond to such a statement, and he was given the chance to engage in discovery before responding, if necessary. We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in his favor, as explained below. Therefore, we find that the AJ's issuance of a decision without a hearing was appropriate.
Disparate Treatment (Incidents 1 and 2)
To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, a complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Upon review of the record, we find that Complainant did not establish disparate treatment in connection with his non-selection and his denial of training. Specifically, Complainant did not prove, by a preponderance of the evidence, that the legitimate, nondiscriminatory reasons articulated by the Agency were a pretext for discrimination.
We note that the following exchanges occurred between the Agency Representative and Complainant in Complainant's May 17, 2013, deposition:
Q: Was your race a motivating factor in denying these trainings?
A: No.
Q: Was your color?
A: No.
Q: Was your national origin?
A: No.
Q: Your disability?
A: No.
. . .
Q: Just to reiterate, you think that [S1 and S2] were intimidated by you?
A: I believe so.
Q: And you think that was the motivating factor?
A: That was the motivating factor.
. . .
Q: And why do you think [S1] didn't want to select you?
A: He just didn't like me, and still do[es]n't.
Q: Is that because of your race?
A: No.
Q: Your color?
A: No.
Q: Your national origin?
A: No.
Q: Your disability?
A: No.
. . .
Q: Was race a factor in your non-selection?
A: No.
Q: Was your color a factor in your non-selection?
A: No.
Q: Was your national origin a factor in your non-selection?
A: No.
Q: Your disability a factor in your non-selection?
A: No.
Deposition Transcript, at 187-89, 215, 227.
Based on the above, we conclude that Complainant did not establish his claims of disparate treatment on the bases of race, national origin, color, or disability.
Hostile Work Environment Harassment (Incidents 1, 2, and 3)
To establish a claim of harassment, a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their 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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002, at 6 (Mar. 8, 1994).
Upon review of the record, we find that Complainant did not establish hostile work environment harassment in connection with his non-selection, his denial of training, and other negative conduct. Even assuming that the incidents occurred as he alleged, we find that Complainant did not show that they were based on his race, national origin, color, or disability.
Regarding incidents 1 and 2, we find that, under the standards set forth in Harris, Complainant's claim of hostile work environment harassment involving his non-selection and the denial of his training requests must fail. See Harris Guidance. A finding of hostile work environment harassment involving incidents 1 and 2 is precluded by our determination that Complainant did not establish that the Agency's actions were motivated by race, national origin, color, or disability. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000).
Regarding incidents 3a-3f, we note that Complainant was explicitly asked during his deposition about whether each incident was based on his race, national origin, color, or disability. Complainant consistently responded "No." Deposition Transcript, at 133-36, 163, 167-68,
172-73, 175, 184-85. Based on the above, we conclude that Complainant did not establish his claim of hostile work environment harassment on the bases of race, national origin, color, or disability.
CONCLUSION
Complainant did not establish that the Agency subjected him to disparate treatment or hostile work environment harassment on the bases of race, national origin, color, or disability in connection with his non-selection, his denial of training, or other negative conduct. Therefore, based on a thorough review of the record, we AFFIRM the Agency's final order finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
___9/1/16_______________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 S1 averred that the other three vacancies closed before he was able to fill them.
3 For purposes of clarity, we have rephrased and renumbered Complainant's allegations based on his formal complaint and his declaration.
4 29 C.F.R. � 1614.403(d) provides that any statement or brief filed on behalf of a complainant in support of the appeal must be submitted to the Office of Federal Operations within 30 days of filing the notice of appeal. The record reveals that Complainant filed his notice of appeal on November 1, 2013, but did not submit a statement in support of his appeal until January 22, 2014. The Commission declines to consider Complainant's January 22, 2014 statement as it was untimely pursuant to 29 C.F.R. � 1614.403(d).
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