0120161159
06-28-2018
Collin R.,1 Complainant, v. Jeff B. Sessions, Attorney General, Department of Justice (Drug Enforcement Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Collin R.,1
Complainant,
v.
Jeff B. Sessions,
Attorney General,
Department of Justice
(Drug Enforcement Administration),
Agency.
Appeal No. 0120161159
Hearing No. 510-2015-00329X
Agency No. DEA-2014=01109
DECISION
On February 16, 2016, 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 January 27, 2016, 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. For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are: (1) whether the EEOC Administrative Judge (AJ) properly dismissed three of Complainant's claims on the grounds that they were initiated by untimely EEO Counselor contact; and (2) whether the AJ properly issued a decision without a hearing on the remaining claim.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Group Supervisor, GS-14, at the Agency's Jacksonville District Office (JDO) facility in Jacksonville, Florida. On November 7, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Hispanic) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On May 13, 2014, he was issued a "poor" interim appraisal evaluation;
2. On January 29, 2014, he was issued a "poor" Special Agent Promotion Program (SAPP) rating;
3. From an unspecified date up to November 7, 2013, he was subjected to verbal attacks and unwarranted comments (e.g., "don't be a smart ass"); and,
4. From an unspecified date up to February 20, 2014, he was denied the tools and resources to perform his job, denied equal opportunity to succeed, and was excluded from management decisions that impacted his team.
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 Equal Employment Opportunity Commission Administrative Judge. Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's November 5, 2015, motion for a decision without a hearing and issued a decision without a hearing on December 14, 2015. The AJ dismissed claims 2, 3 and 4 as untimely, because Complainant initiated EEO counseling on the instant complaint on June 6, 2014, which was well beyond 45-days of the date of the alleged discriminatory activities.
With respect to claim 1, the AJ found that it referenced an interim, mid-year appraisal, and as such, failed to state a claim. Accordingly, that claim was dismissed as well. Thereafter, Complainant properly argued that the due date for the submission of his motion opposing summary judgment was not until December 23, 2015. Accordingly, the AJ accepted Complainant's motion to reconsider the summary judgment decision and reviewed the arguments submitted by Complainant in December 2015 and January 2016.
After reviewing Complainant's submission, the AJ again concluded that the record supported the issuance of summary judgment in favor of the Agency and on January 21, 2016, issued an Order on Complainant's Motion to Reconsider, which re-affirmed his December 14, 2015, findings. Subsequently, on January 27, 2016, the Agency issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among a number of things, that the Agency did not submit the complete complaint file to the EEOC for consideration, as they did not submit the documents that Complainant offered in support of his motion in opposition to the decision without a hearing. In contrast, the Agency contends that after issuing his initial decision, the AJ considered the subsequent information presented in Complainant's Motion for Reconsideration from Dispositive Order and Supplemental Brief and, thereafter reaffirmed his original decision in the January 21, 2016, Order on Complainant's Motion to Reconsider.
ANALYSIS AND FINDINGS
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 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).
As an initial matter, we find that any failure on the part of the Agency to submit to the EEOC all the documents that the AJ reviewed when reconsidering his initial summary judgment decision, had no bearing on the instant decision. In making his determination, the AJ did in fact review the submissions offered by Complainant in opposition to summary judgment. Moreover, Complainant forwarded those submissions to the Commission for consideration of his appeal. Nevertheless, the Agency is reminded of its obligations to deliver a complete complaint file for appellate review.
We find that the AJ properly dismissed claims 2, 3 and 4 as untimely. Complainant failed to present any arguments that would warrant a waiver or extension of the applicable time limits. Moreover, the AJ also agreed with the Agency that claims 2, 3 and 4 were generally addressing the same or similar claims which were addressed in a previous EEO complaint, which at the time this complaint was being considered were on appeal before the Commission. Accordingly, the AJ additionally dismissed these claims because they were at that time being considered, individually or as a hostile environment claim, in Complainant's other appeal, EEOC Appeal No. 0120151949 (August 31, 2017). As such, the AJ properly did not make a hostile environment determination in the instant matter.
Finally, with respect to claim 1, we also find that the AJ's dismissal was proper. Complainant's mid-year performance evaluation was a proposal or preliminary step to take a personnel action. The Commission has held that a periodic progress review with no permanent effect does not create a personal harm. See Jackson v. Central Intelligence Agency, EEOC Request No. 05931177 (June 23, 1994). Here, Complainant presented no evidence of a personal harm; therefore, we find he was not aggrieved by the mid-year performance evaluation. Moreover, the AJ indicated that in the initial telephonic conference Complainant stated that the final rating for the period in question, 'Significantly Exceeds Expectations," was a fair appraisal.
CONCLUSION
The AJ's issuance of a decision without a hearing was appropriate. Complainant failed to establish that the Agency subjected him to discrimination on the basis of national origin (Hispanic) or reprisal for prior EEO activity as a result of the claims alleged herein. Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission AFFIRMs the Agency's final order.
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
__6/28/18________________
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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