0120160177
04-19-2018
Brad M.,1 Complainant, v. Martin J. Gruenberg, Chairman, Federal Deposit Insurance Corporation, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Brad M.,1
Complainant,
v.
Martin J. Gruenberg,
Chairman,
Federal Deposit Insurance Corporation,
Agency.
Appeal No. 0120160177
Hearing No. 461-2015-00039X
Agency No. FDICEO-14-032
DECISION
On October 8, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's September 1, 2015, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final order which fully implemented the Equal Employment Opportunity Commission's Administrative Judge's (AJ) finding that Complainant did not establish discrimination and that a decision without a hearing was appropriate.
ISSUES PRESENTED
The issues presented are whether the AJ erred in granting the Agency's motion for summary judgment after determining that there were no material facts at issue; and that Complainant did not prove that he was subjected to discrimination or a hostile work environment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mid-Career Compliance Examiner (CG-09) at the Agency's Baton Rouge Field Office in Baton Rouge, Louisiana. Complainant's position was a non-commissioned, developmental role designed to prepare employees to become commissioned bank examiners. The Mid-Career Compliance Examiner was required to take and pass the Technical Evaluation (TE), within 30 months of being in the position. A prerequisite to taking the TE was the successful completion of applicable performance benchmarks. The Agency considered TE scores and other factors when determining whether to commission a non-commissioned examiner. For all Grade 9 Mid-Career Compliance Examiners, including Complainant, the benchmarks included satisfactorily completing compliance reviews, preparing and submitting Reports of Examination, and serving as an Acting Examiner-in-Charge ("AEIC").
Complainant received "Needs Development" on all three of his assignments as an AEIC. On April 28, 2014, Complainant received feedback regarding his Mid-Year Performance Review. Complainant was told via email that his performance needed to improve in the areas of "organizing and administering own work, applying/developing technical skills, communication in writing, and accountability for performance." Complainant was warned that should his work performance not improve his year-end rating would be impacted and he may not be recommended for commissioning, and he could be placed on a Performance Improvement Plan (PIP).
On May 15, 2014, Complainant was notified that he had not satisfactorily completed all of the required benchmarks to take the TE. On June 9, 2014, the Agency placed Complainant on a 90-day PIP. Regular PIP status reports were provided to Complainant. On September 5, 2014, the Agency extended Complainant's PIP until September 30, 2014. On October 9, 2014, Complainant received a PIP Status Report which indicated that he was unsuccessful in completing the requirements of the PIP. On November 18, 2014, Complainant received a year-end performance rating of Unacceptable for the 2014 rating period.
Prior to Complainant's year-end rating, in August 2013, Complainant requested a medical hardship transfer to the Dallas Field Office. On September 4, 2013, Complainant was advised that his transfer request was denied because there were no available Compliance Examiner Positons in the Dallas Field Office. Complainant spoke with the Assistance Regional Director (ARD) regarding the denial of his request for transfer. On December 18, 2013, Complainant emailed the ARD informing him that his transfer request was "not an accommodation request" and that he was "perplexed" why the ARD had referenced a workplace accommodation. Complainant filed a grievance regarding this matter but it was not successful.
On April 1, 2014, Complainant reiterated his request for a medical hardship transfer to the Dallas Field Office. On April 7, 2014, the ARD emailed Complainant a summary of the results of the grievance process regarding Complainant's 2013 medical hardship transfer request.
On August 6, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), sex (male), disability (hip and back pain and Post Traumatic Stress Disorder (PTSD)), age (46), and reprisal for prior protected EEO activity when the Agency denied his request to take the Agency's Technical Examination and subjected him to an ongoing hostile work environment.
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. Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's August 18, 2015, motion for a decision without a hearing and issued a decision without a hearing on August 18, 2015. The AJ found that Complainant did not establish a prime facie case of discrimination as to all of his bases except reprisal. The AJ determined that with respect to the TE denial claim, Complainant failed to identify a similarly situated Compliance Examiner, not of his protected EEO bases who received more favorable treatment than he did. Further, the AJ determined that Complainant failed to present any evidence and the record lacked any probative evidence sufficient for a fact-finder to infer that the Agency discriminated against him. Specifically, the AJ found that it was undisputed that Complainant did not make the performance benchmarks that was required to take the TE.
Further, with respect to the five comparators that Complainant offered, only three of the employees were Mid-Career Compliance Examiners and only two of those were employed in Complainant's duty station. It was also undisputed that both employees shared Complainant's race and were older than Complainant. Moreover, both employees were Grade 11 Mid-Career Compliance Examiners, as opposed to Complainant's position as a Grade 9 Mid-Career Compliance Examiner. As such, the AJ found that Complainant did not demonstrate that comparators not of his protected bases were treated more favorably.
The AJ also found that Complainant did not demonstrate that he was subjected to a hostile work environment. The AJ found that the incidents complained of were work-related performance incidents and Complainant did not show that his protected bases were considered. The AJ found that Complainant did not prove that discrimination occurred in his case.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant did not prove that the Agency subjected him to discrimination and harassment as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that the AJ erred in issuing a decision without a hearing as there were genuine issues of material fact remaining. Complainant maintains that contrary to the AJ's findings, he established a prima facie case of discrimination based on his sex and age because younger employees were allowed to take the test multiple times. Complainant also asserts that he established a prima facie case of disability and reprisal discrimination.
In response, the Agency contends, among other things, that Complainant was a poor performer and he was not allowed to take the TE because he did not satisfy the prerequisites for taking the mandatory written examination. The Agency also asserts that Complainant was not subjected to a hostile work environment.
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), at Chap. 9, � VI.B. (Aug. 5, 2015) (providing that an administrative judge'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 id. at Chapter 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").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 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).
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that a decision without a hearing was properly issued because there are no material issues of fact in dispute. Further, we find that even if we assume arguendo that Complainant established a prima facie case of discrimination as to all of his bases, the Agency articulated a legitimate, nondiscriminatory reason for its action; namely, that Complainant was not permitted to take the TE test because he did not meet the performance-related prerequisites. Specifically, his performance was repeatedly found to need improvement and was ultimately rated as unsatisfactory. As such, according to the Agency's Training Policy he was not eligible to take the TE. We find that Complainant did not demonstrate that his protected bases were considered with regard to his performance rating. Complainant also did not show that discriminatory animus was involved in his interactions with management.
Further, we find that Complainant did not demonstrate that he was subjected to a hostile work environment. We find that the incidents complained of were work-related interactions that were involved his performance nor were they severe or pervasive enough to establish a hostile work environment.
Finally, with respect to Complainant's contentions on appeal, we find that other than Complainant's conclusory statements, he has not provided any evidence which shows that other employees not of his protected bases were treated more favorably. He also does not deny that his performance needed improvement. Therefore, we find that the AJ's decision without a hearing which found no discrimination or harassment is supported by the record.
CONCLUSION
Accordingly, we AFFIRM the Agency's final order which found that Complainant did not prove he was subjected to discrimination or harassment as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
_4/19/18_________________
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.
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