0120130264
03-09-2015
Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security, Agency.
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120130264
Hearing No. 410-2011-00287X
Agency No. HS-FLETC-17955-2010
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's September 19, 2012, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Agency's final order which fully implemented the Administrative Judge's (AJ) finding that Complainant failed to demonstrate that he was subjected to discrimination is AFFIRMED.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Law Enforcement Specialist (Instructor), GS-13 at the Agency's Federal Law Enforcement Training Center (FLETC) in Glynco, Georgia. On August 4, 2006, Complainant suffered a disc herniation while running on a FLETC fitness trail and since that time has had lower extremity damage. Complainant contends that up until that time, he was viewed as "a rising star" with his supervisor (S1) who promoted him twice within a year and a half from GS-11 to GS-12 and then from GS-12 to GS-13. Complainant maintains that as a result of the injury to his back, even with surgeries, he will never make a full recovery and some activities remain completely off-limits, including running, and lifting more than 50 pounds at a time.
Following his injury, Complainant was allowed to work in a light duty position. He was formally placed on light duty on February 23, 2009, with restrictions that included no lifting more than 10 lbs., and no bending, stooping, pushing, or pulling. The light duty assignment was to continue indefinitely.
Complainant was consistently evaluated as an intelligent, hard worker who was diligent and passionate about his job. Notwithstanding, S1 indicated that Complainant's interpersonal skills needed some improvement as it had been noted that Complainant was abrasive with coworkers. S1 described Complainant as abrasive, loud, argumentative, and sometimes ill-mannered with the staff. S1 verbally counseled Complainant regarding this matter.
In May 2010, Complainant applied for one of three Branch Chief, GS-14 supervisory positions. There were several best qualified lists. Complainant was listed on the best qualified list for Disabled Veterans (DV). Three managers were tasked with deciding who would be selected for an interview out of the large pool of 81 applicants. Complainant was not selected for an interview based on S1's comments regarding Complainant's lack of interpersonal skills. The panel recommended fourteen applicants for interviews. Following the interviews, the panel recommended six individuals, in rank order, to the recommending official for consideration to fill the multiple vacant Branch Chief positions. As Complainant was not selected for an interview, his application was not forwarded to the interview panel, he was not interviewed, and his name was not forwarded to the selecting official, for consideration for selection. For those that went through the process, the selecting official selected the top candidates recommended by the interview panel. One of the selectees was from the DV list. The selecting official had no personal knowledge of Complainant or his disability.
Complainant maintained that of the three applicants selected for the Branch Chief positions, he was more qualified than at least two of the selectees if not all three, based on his education level, years of experience and overall knowledge.
On September 30, 2010, Complainant filed a formal complaint alleging that the Agency discriminated against him on the basis of disability (back injury) when he was not select for an interview for the GS-14 Branch Chief position.
Following an investigation by the Agency, Complainant requested a hearing before an AJ. The AJ held a two day hearing and based on the information garnered there and the investigative record, the AJ ruled that Complainant failed to show that he was subjected to discrimination when he was not selected for an interview. Specifically, the AJ found that assuming Complainant established a prima facie case of disability discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that despite Complainant's work ethic and passion for his job, his attitude and overall demeanor was abrasive and at times unapproachable. The Agency maintained that despite Complainant's good credentials, management did not feel he would be a good fit for the Branch Chief position because it required interpersonal interactions and leadership. The AJ found that the Complainant was unable to show that the Agency's reasons were pretext for discrimination.
CONTENTIONS ON APPEAL
On appeal, among other things, Complainant takes issue with the brevity of the AJ's decision, noting that the pretext analysis is solely comprised of two conclusory sentences. Complainant indicates that even though a two-day hearing was conducted with seven witnesses testifying, the AJ did not make reference to a witness or testimony. Complainant further contends that the Agency's assertion that he had problems with his interpersonal skills is pretext for discrimination. Complainant asserts that the Agency failed to submit any written counseling sessions regarding his alleged abrasiveness with coworkers. Complainant maintains that following his first surgery S1, treated him like his injury was a personal affront to him and asked him when he was getting back to full duty. Complainant contends that S1 told him that it appeared that he was "not really working" because he was not working-the-line. Complainant stated that he was told his restrictions seemed to be inconsistent with his ability to ride a bike daily. Complainant maintains that he felt like he was browbeaten by S1's disappointment in him. Following Complainant's second surgery, Complainant maintained that S1 was very resentful that he could not go back to full duty. Complainant also offers as evidence of pretext, the fact that he participated in, and completed, the FLETC Future Leaders Program which he maintains the Agency tried to downplay. Complainant maintains that his supervisor's testimony is not credible. Complainant requests that he be placed in the Branch Chief position.
In response, the Agency maintains that the AJ's decision is correct as it is supported by the preponderance of the evidence and correct as a matter of law. The Agency maintained that Complainant was counseled verbally about his abrasive and belligerent demeanor in the workplace. His supervisors did not document his behavior initially because they believed that Complainant had the potential to overcome these traits, and they did not want a documented history of abrasiveness to impede his advancement in FLETC. However, when Complainant's behavior reached the point where documentation became necessary, his supervisors disagreed as to where in his annual appraisal such comments should be made. It was decided that the comments would be included in the "Instruction-Administration and Coordination" element of his appraisal which contained the sub-element "Demonstrates leadership abilities through effective team work" and "maintains professional conduct." Moreover, management indicated that in 2009, Complainant was also not selected for a previously advertised Branch Chief position and during a meeting called by Complainant; his supervisors explained to him that he was not selected due to his personality deficiencies. At that time, Complainant stated that he would work to improve his "delivery style." As such, the Agency asserts that the Complainant's argument that there is no written documentation regarding his behavior is not relevant because he was notified of these deficiencies, and he agreed that he needed to take corrective action during this meeting.
Further, the Agency notes that from 2006 to 2010 (including the position at issue), the Complainant applied for at least 23 positions, 7 of which would have been lateral transfers for Complainant had he been selected. He was interviewed for five of those positions, and not selected for any of them. Additionally, the Agency indicates that S1 was involved in only one other vacancy with respect to the 23, and he was not even contacted as a reference in any of the other vacancies for which Complainant applied.
Finally, the Agency asserts that the reason for the AJ's "extremely summary, six-page decision," as labeled by Complainant's counsel is that the testimony at the hearing confirmed the facts as presented in the preceding affidavits and depositions and supported the Agency's position that there was no discrimination. The Agency maintains that the AJ witnessed the demeanor of the witnesses, including under cross examination. She assessed the credibility and reliability of the testimony. According to the Agency, the AJ was well within her discretion to find the hearing testimony convincing and to give weight to the facts as presented by the Agency's witnesses who provided consistent testimony in the affidavits and depositions. Likewise, according to the Agency, the facts presented in affidavits and exhibits attached to its briefs were of great weight and value in that they too were consistent with the rest of the evidence provided by the Agency. Further, concerning Complainant's witnesses at the hearing the Agency asserts that the AJ found their testimony had little to no significance because they were colleagues and peers with whom Complainant interacted in a carpool, and a union officer who testified about matters that took place after the relevant time period. The Agency asserts that Complainant did not identify any statement, remark, or action by management which established an inference of disability animus. Therefore, the Agency requests that the Agency's final order which fully implemented the AJ's decision be affirmed.
ANANLYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to affirm the Agency's final order. We find that even if we assume arguendo that Complainant established a prima facie case of disability discrimination, the Agency articulated a legitimate nondiscriminatory reason for its actions, namely, that Complainant was not offered an interview for the position due to his established abrasive behavior; and therefore he was not considered for selection. Clearly, Complainant does not agree with the AJ's findings, but he has not provided persuasive evidence indicating that the record does not contain substantial evidence supporting the findings. In fact, the record shows that S1 promoted Complainant twice and attempted to shield him from written counseling regarding his abrasive behavior so that his future promotional opportunities would not be affected. Further, during the hearing when asked by the AJ to explain the consistent representation of his personality issues which were listed as rude, abrasive, and combative, his interpersonal relationship including raising his voice during staff meetings or meetings with others, and things of that nature, Complainant indicated that he could explain. He indicated that his behavior was primarily related to his frustration with management's hostility towards him because he was unable to work-on-the-line. He asserts that time and time again he was placed on the schedule to work-on-the-line when it was against his restrictions and they knew it. He explained that the Agency's actions caused a lot of frustration and hence the behaviors described. Complainant also recalled one incident where there was a confrontation with a supervisor in front of others at a meeting. He indicated that others would know about it because the workplace was a rumor mill. We note that Complainant does not deny that there have been issues related to his personality. He acknowledged that he had a discussion with S1 after a prior nonselection where he was told that his abrasive behavior was the reason why he was not selected.
With respect to Complainant's contentions on appeal, the Commission notes that the AJ at the beginning of her decision indicated that she was considering the entire record with respect to her decision. While Complainant argues that the decision is sparse considering that a two-day hearing was had, we find no evidence that the AJ abused her discretion with regard to the length of her decision. With regard to Complainant's contention that the AJ should have compared his qualifications against those of the selectees, we note that he is not similarly situated to the selectees as their candidacies were forwarded for interviews and presented to the selecting official while Complainant's application did not survive the initial stages of the process. Nevertheless, we find no persuasive evidence that Complainant's qualifications are so "plainly superior" to those of the selectees as to compel a finding of pretext. See Cosentine v. Dep't of Homeland Sec., EEOC Appeal No. 07A40114 (Aug. 9, 2006) (citing Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981)) See Cosentine v. Dep't of Homeland Sec., EEOC Appeal No. 07A40114 (Aug. 9, 2006) (citing Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981))
Accordingly, we find the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
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
__3/9/15________________
Date
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0120130264
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130264