0120113110
11-30-2011
Bobby E. Danzie, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Bobby E. Danzie,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120113110
Hearing No. 410-2010-00061X
Agency No. ARGORDON09FEB00405
DECISION
On June 6, 2011, Complainant filed an appeal with the Equal Employment
Opportunity Commission (EEOC or Commission) from the Agency’s May 2,
2011, final order concerning his equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.,
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 et seq., and Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. § 791 et seq. The Commission deems the
appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a).
ISSUES PRESENTED
Whether Complainant was discriminated against based on his sex (male),
age (58) and disability (irregular heartbeat, sleep apnea, knee, and
medications that prevent focus and alertness) when he was harassed;
and whether his claim that he was discriminated against on the above
bases when he was removed effective January 6, 2009, should be remanded
because it is appealable to the Merit Systems Protection Board (MSPB).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Logistics Management Specialist, GG-13 at the Agency’s 513th Military
Intelligence Brigade, Fort Gordon, Georgia. On April 20, 2009, he filed
an EEO complaint alleging that the Agency discriminated against him on the
above bases when he was removed effective January 6, 2009, as part of an
ongoing campaign of harassment that created a hostile work environment.1
At the conclusion of the investigation, the Agency gave Complainant the
right to request a hearing before an EEOC Administrative Judge (AJ), and
he did so. The AJ granted the Agency’s motion for a decision without
a hearing. The Agency subsequently issued a final order adopting the
AJ’s finding that Complainant failed to prove discrimination.
Complainant’s first line supervisor (S1) started supervising him in
July 2007, and his second line supervisor (S2) started supervising him
in June 2008. In April 2008, S1 gave Complainant separate written
counseling letters about being tardy; failing to meet a deadline;
reminding him he was advised in February 2008 that his performance at
mid-point failed to meet four objectives; and advising him that his
performance had not improved, was unsuccessful, and placing him on a
performance improvement plan (PIP) for 90 days. Thereafter, during the
course of the PIP, S1 gave Complainant progress memorandums advising
him he was not showing improvement in the areas addressed in the PIP,
and specifically identifying tasks that needed to be done. In August
2008 S1 advised Complainant that he failed his PIP, and in October 2008
proposed removing him for unacceptable performance. S2 sustained the
proposal and removed Complainant.
On Complainant’s harassment claim, the AJ found that S1 did not
disparately treat Complainant when she required him to submit medical
evidence that he continued to meet the medical qualifications for
being deployable. He submitted acceptable documentation of such.
Complainant contended that he was harassed, as evidenced by two others
having similar performance to him, but not being criticized for their
work being incomplete or insufficient. He was referring to Comparison
1 (female, age 52, Transportation Specialist, GG-12, his subordinate)
and Comparison 2 (female, age 37, a military Chief Warrant Officer,
Brigade Motor Officer).
The AJ found that Complainant submitted no objective evidence from which
it could be reasonably construed that his performance was on the same
level as Comparisons 1 and 2, nor any evidence that S1 perceived it
as such. Continuing on Complainant’s harassment claim, the AJ found
that he submitted no evidence that the counseling memorandums about his
attendance and performance were untrue, and he did not show he met his
performance objectives. For example, the AJ found that Complainant did
not show he signed up for an Excel class as instructed; did not show he
conducted a thorough review of inter/intra service support agreements and
updated them; and repeatedly failed to brief S1 on the status of projects,
as required. The AJ found that Complainant’s contention, in effect,
was that he did the best he could, and he did not submit evidence that
S1’s expectations were unreasonable.
The AJ did not make a determination on whether Complainant was an
individual with a disability. But the AJ found that the Agency did not
know if Complainant had a disability because after S1 learned Complainant
had a pacemaker installed, Complainant submitted documentation, as
requested, that he was deployable. The AJ found that Complainant
never identified any accommodation that could have assisted him with
his performance.
The Agency’s final action implemented the AJ’s decision.
ANALYSIS AND FINDINGS
In opposition to Complainant’s appeal, the Agency argues that the final
Agency action should be vacated because Complainant’s complaint is
mixed. A mixed case complaint is a complaint of employment discrimination
filed with a federal agency alleging discrimination on protected bases
stemming from an action that can be appealed to the MSPB. 29 C.F.R. §
1614.302(a)(1). Following the investigation of an accepted mixed case
complaint, the Agency is to make a decision on the accepted claims
with appeal rights to the MSPB, not the EEOC. 29 C.F.R. §
1614.302(d)(3).
The Agency argues that the complaint is mixed because Complainant was
employed by the Agency for years, was a preference-eligible excepted
service employee, and was removed for poor performance. 5 U.S.C. §
7511(a)(1)(B). The Notification of Personnel Action documenting
Complainant’s removal indicated he had veteran’s preference, and
the decision removing him gave him mixed case appeal rights. The final
Agency action gave Complainant appeal rights to the EEOC, not the MSPB.
Citing Knox v. United States Postal Service, EEOC Appeal No. 0120091401
(April 23, 2009), the Agency argues that the Commission should vacate
the final action and direct the Agency to reissue it as a final decision
with appeal rights to the MSPB, not the EEOC. On appeal, Complainant
argues that his termination was improper.
We agree that Complainant’s alleged discriminatory termination is
appealable to the MSPB. However, the remaining portion of the harassment
claim is not appealable to the MSPB. Accordingly, the portion of the
final action which addresses the alleged discriminatory removal is
vacated, and on remand the Agency shall issue a final decision on this
portion with appeal rights to the MSPB, not the EEOC. The portion of
the final action which addresses the remaining portion of the harassment
claim and contains connected appeal rights to the EEOC is not vacated.
We now turn to the portion of the harassment claim that does not
regard the removal. 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. The courts
have been clear that summary judgment is not to be used as a "trial by
affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st Cir. 1975).
The Commission has noted that when a party submits an affidavit and
credibility is at issue, "there is a need for strident cross-examination
and summary judgment on such evidence is improper." Pedersen v. Dep’t
of Justice, EEOC Request No. 05940339 (February 24, 1995).
As an initial matter, we find that there are no genuine issues of material
fact in dispute. We assume without finding, for purposes of analysis,
that Complainant is an individual with a disability.
We find, for the same reasons as the AJ, that the Agency took actions
against Complainant because it believed they were warranted or other
non-discriminatory reasons, e.g., asking him to submit medical evidence
that he was still deployable, counseling memorandums, placing him
on a PIP, and allowing him to work extra hours for which he was not
compensated. On his performance, Complainant asserted for example, that
he was unable to finish updating inter/intra service support agreements
because he was relying on information from the other services that was
not forthcoming. S1 countered that Complainant would send out emails to
get information, but not pursue things on his own by asking people again
for the information when it was not forthcoming, and visiting people
face to face. Complainant did not contend that he followed up, as S1
expected, and the record does not show this expectation was unreasonable.
Also, the record reflects that Complainant asked to work extra hours on a
day in December 2008, and that the request was approved, but Complainant
did not submit time sheets with the extra hours on them.
We agree with the AJ that Complainant was not similarly situated to
Comparisons 1 and 2. We add that Complainant is not similarly situated
to Comparison 2 because she was in the military, not civilian, and
hence not subject to the same types of actions. Complainant did not
identify any reasonable accommodations that could have assisted him with
his performance (this ruling does not apply to the removal portion of
Complainant’s complaint).
Complainant has failed to prove discrimination. We are not ruling on
the merits of his removal claim.
ORDER
The Agency shall issue Complainant a final decision on the merits of
Complainant's claim that he was discriminated against based on his
sex, age, and disability when he was removed effective July 6, 2009,
and vacate the portion of its final action dated May 2, 2011, on the
removal claim. The final action shall be issued within 30 calendar days
after this decision becomes final, and contain appeal rights to the MSPB,
not the EEOC, pursuant to 29 C.F.R. § 1614.302(d)(3). A copy
of the Agency's decision shall be sent to the Compliance Officer as
referenced below.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
Compliance with the Commission’s corrective action is mandatory.
The Agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and
the Agency must send a copy of all submissions to the Complainant. If the
Agency does not comply with the Commission’s order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. §�
�1614.503(a). The Complainant also has the right to file a civil action
to enforce compliance with the Commission’s order prior to or following
an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407,
1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled “Right to File A Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
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 (T0610)
This decision affirms the Agency’s final decision/action in part, but it
also requires the Agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion of
your complaint which the Commission has affirmed and that portion of the
complaint which has been remanded for continued administrative processing.
In the alternative, you may file a civil action after one hundred and
eighty (180) calendar days of the date you filed your complaint with the
Agency, or your appeal with the Commission, until such time as the Agency
issues its final decision on your complaint. 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
November 30, 2011
__________________
Date
1 In its definition of the complaint, the Agency listed various incidents
supporting the claim of harassment. The AJ defined the complaint
as above.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120113110