0120133353
07-28-2015
Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120133353
Hearing No. 420-2013-00085X
Agency No. ARREDSTON12JUN02434
DECISION
On September 16, 2013, Complainant filed an appeal from the Agency's August 20, 2013, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Student Trainee (Procurement) at the Agency's Army Contracting Command-Redstone facility in Redstone Arsenal, Alabama.
On July 12, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and color1 (Black) when:
1. On April 12, 2012, Complainant's employment was terminated.
When the Agency failed to complete the investigation in 180 days, the Agency provided Complainant with a notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's June 26, 2013, motion for a decision without a hearing and issued a decision without a hearing on August 7, 2013. Specifically, the AJ found that Complainant failed to establish a prima facie case of discrimination and failed to show that he was treated less favorably than otherwise similarly situated employees outside of his protected bases. 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.
ANALYSIS AND FINDINGS
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.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 0973). For Complainant to prevail, he must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The April 11, 2012 Termination notice (Notice), issued by Complainant's Supervisor (S1: African American, black) said that the action was being taken "for Failure [sic] to adhere to the work schedule policies and procedures of this office." The Notice further stated:
Since your assignment to [Complainant's position], you have been counseled [sic] on more than three (3) occasions by your supervisors regarding the work schedule policies and procedures. It has also been discussed with you the importance of reporting time and attendance accurately and the requirements to inform me of any planned changes in your established work schedule which is Monday, Wednesday, and Friday, 1200-1800. In June of 2011, you were advised by . . ., your second line supervisor [S2: Caucasian, white] of discrepancies in your recorded time versus the time and attendance she observed. On 6, 7, 8, 9, and 10 June 2011 the times that you recorded were very different from the times that [S2] observed. When she asked you about this, you responded that you did not know that you should report your time in 1/4 hour increments and that you were in and out of the office during these times talking with your professor on the phone. When I became your supervisor in January 2012, I discussed in depth with you the requirements for reporting accurate time and attendance and the necessity of gaining approval prior to changing your work schedule. The day after this discussion, you reported to work on a different schedule without any coordination with me. I discussed with you again about the importance of maintaining a set schedule unless you had my approval for change. On 9 March 2012, you reported to work again on a different schedule without prior approval. This was brought to my attention when I emailed you an assignment at 1225 and you never responded during the workday. On 12 March 2012, I questioned you about this and you stated that you worked from 0800 to 1400 on 9 March 2012 which is not your established work schedule. You provided three accounts of your whereabouts from 1225 to 1400. First you stated that you were in building 5303 with an employee who was not even at work on 9 March 2012. Then you stated that you had gone to the CPAC until it was time for you to leave at 1400. You later admitted that you had submitted and inputted time in ATAAPS that was not reflective of the actual hours worked for this day. During this discussion, you acknowledged that you had been counseled [sic] on the policies and procedures for time and attendance as well as the consequences for not following these policies and procedures. At this time, you volunteered to resign your position but I have not received your resignation.
Your actions have resulted in additional time and oversight of your attendance. Your sporadic time and attendance behavior [sic] and failure to gain approval for a change in your work schedule has made it extremely difficult to plan work assignments for you and to engage you in meaningful and productive tasks. We have an extremely busy workforce and every employee needs to be fully engaged to support the mission of this organization.
3. The probationary period is a time when the employing agency determines the fitness of the employee for the position to which appointed. Your conduct during this period has been evaluated and based on the reasons cited above, I have concluded that your conduct does not warrant retention. Therefore, your last day of employment will be 20 April 2012.
Report of Investigation (ROI) pp. 91-2.
In their testimony during the investigation, S1 and S2 essentially reiterated the same allegations regarding Complainant's time and attendance. See ROI pp. 382-3 & 466-8. The Agency having articulated a legitimate nondiscriminatory reason for its action, the burden thus returns to Complainant to demonstrate, by a preponderance of the evidence, that the Agency's reason was pretextual, that is, it was not the true reason or the action was influenced by legally impermissible criteria. See Burdine, 450 U.S. at 253; Hicks, 509 U.S. at 502. Following a review of the record we find that Complainant has not met this burden.
During the investigation, Complainant was not able to rebut S1's allegations that he provided varying accounts about his whereabouts on March 9, 2012, or that he repeatedly failed to stick to his set schedule. Instead, Complainant alleged that S1 yelled at him and embarrassed him before his coworkers and further conceded that he "might have honestly made a mistake in my time." ROI, pp. 347-8. Complainant further maintained that he should not have been placed on a fixed schedule because of his schoolwork, see id., p. 332, and that he believed S1's reliance on a surveillance camera to check when Complainant left the workplace amounted to "harassment." Id., p. 343. Such responses, however, do not tend to show that the Agency's reason for its action was a pretext or otherwise show that the Agency discriminated against Complainant based on race or color.
Complainant argues that another coworker (CW: Caucasian, white) would leave early but his employment was not terminated nor did management check his attendance using workplace surveillance cameras but Complainant provides no corroborative evidence to support this claim. We note further that it is undisputed that CW was a full-time employee, not part-time like Complainant, and further, that at the time of the alleged discrimination, CW worked for a different supervisor. See ROI, pp. 398, 463, 474, 500. Furthermore S2 testified that she did, in fact, monitor CW's schedule: "He sits right outside my door so I can see when he is there and when he is not there." Id., p. 500. On appeal, Complainant argues that the fact that CW and Complainant had different supervisors does not matter since "they both work for the same agency." Complainant's Appeal Brief. We note, however, that Courts have regularly held that for a comparative employee to be considered similarly situated, all relevant aspects of appellant's employment situation must be nearly identical to those of the comparative employee. See e.g., Payne v. Illinois Central R.R., 665 F. Supp. 1038, 1043 (W.D. Tenn. 1987). Thus, in order to be similarly situated, a comparative employee must have reported to the same supervisor and worked the same schedule as the complainant. We therefore find that CW was not similarly situated with Complainant and hence any difference in treatment, even assuming the truth of Complainant's allegation, does not establish that discrimination occurred. Hance we find no basis to disturb the AJ's findings in this matter.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not satisfied his burden of establishing, by a preponderance of the evidence, that the Agency's articulated reason for its action was a mere pretext to mask intentional discrimination, or otherwise show that discrimination occurred. We therefore AFFIRM the Final Order.
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
July 28, 2015
__________________
Date
1 Complainant claimed discrimination based on both race and color but both the AJ and the Final Order only mentioned race. However since the legal analysis for Complainant's claim based on race is identical to his claim based on color, we deem the error to be harmless.
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0120133353
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120133353