0120172520
06-14-2018
Clinton M.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Clinton M.,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120172520
Hearing No. 480201400472X
Agency No. ARSHAFTER13JUN02001
DECISION
Complainant timely appealed, pursuant to 29 C.F.R. � 1614.403, the Agency's May 25, 2017 Final Order concerning an 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.
At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Medical Support Assistant in the Interdisciplinary Pain Management Clinic, of the Tripler Army Medical Center ("TAMC") in Honolulu, Hawaii.
On August 1, 2013, Complainant filed an EEO complaint alleging discrimination by the Agency on the bases of bases of race (Hispanic, Caucasian), national origin (Spanish), sex (male), color ("darker"), and age (56), when:
1. On December 4, 2012, the Head Nurse ("N1") informed his first level supervisor ("S1") that he was not following proper procedure when checking in patients,
2. On February 20, 2013, S1 temporarily detailed him to the Patient Administrative Division for 120 days, and
3. Between April 26, and June 29, 2013, his second level supervisor ("S2"), had him escorted from the building by the Provost Marshal's Officer, placed him on [paid] administrative leave, and issued him a Notice of Proposed Removal.
After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission ("EEOC" or "Commission") Administrative Judge ("AJ"). Complainant timely requested a hearing, which was accepted on about April 30, 2014.
On November 6, 2015, the matter was transferred to another EEOC Hearings Unit and assigned to a different AJ for a mandatory settlement conference. The AJ conducted the conference on or about January 3, 2016. As the parties failed to reach an agreement, the AJ issued a notice explaining that the hearing process would proceed, and that he would accept motions for summary judgment (decision without a hearing) submitted within 15 days. The Agency promptly submitted a Motion for a Decision without a Hearing, which, based on signature confirmation, Complainant received at his address of record on January 30, 2017.
On May 8, 2017, well past the deadline for Complainant to submit an opposition brief, the case was reassigned to another AJ. Complainant had not submitted any additional materials, so based on the record and the Agency's submissions, the AJ granted the Agency's "unopposed" Motion. The Agency issued its Final Order adopting the AJ's finding that Complainant failed to prove discrimination as alleged. The instant appeal followed.
The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). 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. 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. (as revised, August 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).
To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Complainant failed to establish such a dispute. His appellate argument that the AJ's decision should be reversed because he was not notified or afforded an opportunity to submit material evidence to oppose summary judgment is contradicted in the record, and we find no evidence that the AJ's assignment placed Complainant at a disadvantage. On appeal, Complainant also provides evidence, including grievance documents calling S2's credibility into question, assertions that critical testimony from S1 has yet to be obtained, and exemplary performance appraisals from the past 2 years, including a promotion and cash awards. However, these submissions fail to establish a dispute of material fact, as they do not address how the Agency's legitimate nondiscriminatory reasons for its actions were pretext for discrimination.
As an employer, the Agency is entitled to make its own business judgments. Absent evidence of discriminatory animus toward complainant, the Commission will not second guess the agency's business judgment in these matters. See Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996), citing Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981) (Agencies have "broad discretion" to determine how best to manage their operations, and it is not the function of this Commission to substitute its judgment for that of management officials who are familiar with the needs of their facility); see also Wrenn v. Gould, 808 F.2d 493, 503 (6th Cir. 1987) (to make a determination of discrimination, one must look at the motivation of the decision maker as opposed to his business judgment). The reasonableness of the employer's decision may, of course, be probative of whether it is pretext.
Here, the Agency's legitimate nondiscriminatory reasons, include business judgment matters related to its operational goals of patient safety, and minimizing patient frustration. Nowhere in his appeal does Complainant dispute the incidents of poor customer service and inappropriate behavior, which the Agency and claims he is unwilling to change. Moreover, Complainant he has not demonstrated that the Agency's actions were "unreasonable" in terms of business judgment. The actions taken were consistent with Agency policy. Further, as the AJ previously noted, Complainant did not lose any pay, and was transferred instead of removed, as a result of alleged actions he did not dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant's favor.
Upon careful review of the AJ's decision and the evidence of record, as well as the parties' arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged.
Accordingly, we AFFIRM the Agency's final order adopting the AJ's decision.
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
June 14, 2018
__________________
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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