0120110381
04-08-2011
Boyd R. Tyson, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Boyd R. Tyson,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120110381
Hearing No. 480-2110-00213X
Agency No. ARCELA09MARY02028
DECISION
On October 14, 2010, Complainant timely filed an appeal from the
Agency's September 24, 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., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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 on appeal are: (1) whether the EEOC Administrative
Judge (AJ) properly issued a decision without a hearing; and (2)
whether the AJ correctly found that Complainant was not subjected to
discrimination based on race, sex, age, and reprisal for prior protected
EEO activity as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Program Support Assistant at the Agency's Regulatory Division,
District Corps of Engineers in Los Angeles, California. Report of
Investigation (ROI), EEO Complaint, at 1. On April 15, 2008, Complainant
was transferred from the Agency's Information Management Office (IMO) to
the Regulatory Division. Fact-Finding Conference Transcript (FFC. Tr.),
at 8-9. Complainant and a coworker (CW) (Mexican-American, female, age 42)
were the only Program Support Assistants in the Regulatory Division. ROI,
CW Appraisal Data, at 1. From April 15, 2008, to September 30, 2008, the
Agency methodically increased Complainant's duties and responsibilities,
including making him responsible for public notices, supply duties, and
electronic posting of public notices after August 2008. FFC Tr., at 79-80
On April 14, 2009, Complainant received his Base System Civilian
Evaluation Report for the rating period of March 1, 2008, through
February 28, 2009. FFC. Tr., at 6. The report rated Complainant in the
following areas: technical competence, adaptability and initiative;
working relationships and communications; and responsibility and
dependability. ROI, at 2. Complainant received a fully successful
rating of "3" for all four of above areas. Id. CW also received a fully
successful rating of "3" for the same period. ROI, CW Appraisal Data, at
1. Thereafter, on April 28, 2009, Complainant participated as a witness
and provided testimony at a Fact-Finding Conference relating to another
coworker's EEO complaint. ROI, at 2.
On June 23, 2009, Complainant filed an EEO complaint alleging that the
Agency discriminated against him on the bases of race (African-American),
sex (male), age (64), and reprisal for prior protected EEO activity
when:
1. On April 14, 2009, he received a "3" rating on his Base System Civilian
Evaluation Report for March 1, 2008, through February 28, 2009; and
2. He performed the duties of two employees during the rating period of
April 1, 2008, through September 30, 2008, and management did not take
these duties into account in his performance rating.
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. After both parties submitted motions for a
decision without a hearing, the AJ assigned to the case issued a decision
without a hearing on September 7, 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. The AJ found
no direct or circumstantial evidence that Complainant was discriminated
against based on race, sex, or age. AJ's Decision, at 6. With respect to
retaliation, the AJ found that Complainant was given his performance
rating before he engaged in protected EEO activity. Id. at 6-7.
Therefore, the AJ found no evidence of discrimination and granted the
Agency's motion for Summary Judgment. Id.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency did not allow him to
attend a conference called "Black in Government." Complainant's Appeal
Brief, at 2. Complainant further contends that the Agency submitted false
statements, concealed evidence, and obtained his personal information
without his authorization. Id. Also, Complainant contends that other,
less qualified employees in the Regulatory Division were promoted while
he was not. Id. Also, Complainant contends that employees who abused
their time and attendance were never disciplined. Id. Further, Complainant
contends that his requests for training were denied on numerous occasions,
while other employees' requests were granted. Id. at 3.
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 EEO Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
Ch. 9, � VI.B. (Nov. 9, 1999) (providing that an administrative judge's
"decision to issue a decision without a a hearing pursuant to [29C.F.R. �
1614.109(g)] will 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
id. at Chap. 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 EEOC "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").
ANALYSIS AND FINDINGS
Decision without a Hearing
We must first 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 administrative judge
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 administrative judge could
order discovery, if necessary, after receiving an opposition to a motion
for a decision without a hearing).
After a review of the record, the Commission finds that the AJ's issuance
of a decision without a hearing was appropriate. The record has been
adequately developed, Complainant was given notice of the Agency's motion
to issue a decision without a hearing, he was given an opportunity to
respond, he was given a comprehensive statement of undisputed facts,
and he had the opportunity to engage in discovery. In addition, the
Commission finds that, even assuming all facts in favor of Complainant,
a reasonable fact-finder could not find in Complainant's favor, as
explained below. Therefore, we find that no genuine issues of material
fact or credibility exist. Under these circumstances, we find that the
AJ's issuance of a decision without a hearing was appropriate.
Disparate Treatment
In the absence of direct evidence, a claim of discrimination is examined
under the three-part analysis originally enunciated in McDonnell Douglas
Corp. v. Green. 411 U.S. 792 (1973). For Complainant to prevail, he
must first establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor in the
adverse employment action. Id. at 802; Furnco Constr. Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its action. Tex. Dep't of
Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has
met its burden, Complainant bears the ultimate responsibility to persuade
the fact finder by a preponderance of the evidence that the Agency acted
on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502 (1993).
Assuming, arguendo, that Complainant established a prima facie case
of discrimination based on race, sex, age, and reprisal, we find
that the Agency has articulated legitimate, nondiscriminatory reasons
for its actions. With respect to claim 1, the Agency explained that
Complainant was received the fully successful rating of "3" because
he, among other things, had difficulties maintaining professional,
positive relationships with office staff. FFC. Tr., at 74-76. Further,
the Agency explained that Complainant sent emails that were difficult to
understand that needed to be edited and resent. Id. Regarding claim 2,
the Agency explained that Complainant was methodically assigned more
responsibilities because he became more familiar with the Regulatory
Division. Id. at 58, 79-80. The Agency explained that after August 2008,
public notices, supply duties, and electronic posting of public notices
became part of Complainant's duties because he became more familiar with
the Regulatory Division. Id. at 79-80.
At all times, the ultimate burden of persuasion remains with Complainant
to demonstrate, by a preponderance of evidence, that the Agency's
proffered explanation was not the true reason for its actions, but that
the Agency acted on the basis of discriminatory animus. Complainant
failed to carry this burden. Although Complainant contends that he
was given a lower performance rating than other employees, the record
reflects that CW, also a Program Support Assistant, received the same
fully successful rating of "3" for the same rating period. ROI, CW
Appraisal Data, at 1. We also note that Complainant's April 28, 2009,
protected EEO activity occurred after he was given his performance rating
on April 14, 2009. Further, even though Complainant may have performed
more duties than other coworkers, there is no evidence establishing that
the Agency intentionally assigned him additional duties based on his
race, sex, age, or in reprisal for prior protected EEO activity. Lastly,
notwithstanding Complainant's contention, there is no evidence that the
Agency submitted false statements or concealed evidence.1
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the Agency's
final order adopting the AJ's decision.
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
April 8, 2011
Date
1 The Commission notes that Complainant raises new allegations
on appeal. Complainant is advised to initiate contact with an EEO
Counselor if he wishes to pursue the additional allegations he raises
for the first time on appeal. If Complainant wishes to pursue these
claims, he is advised to contact an EEO Counselor within 15 days of the
date he receives this decision. For timeliness purposes, the date of
Complainant's initial EEO Counselor contact in regard to these matters
will be deemed to be the date on which the instant appeal was filed.
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0120110381
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120110381