0120143255
10-28-2016
Darell C.,1 Complainant, v. Sylvia Mathews Burwell, Secretary, Department of Health and Human Services (Centers for Disease Control and Prevention), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Darell C.,1
Complainant,
v.
Sylvia Mathews Burwell,
Secretary,
Department of Health and Human Services
(Centers for Disease Control and Prevention),
Agency.
Appeal No. 0120143255
Hearing No. 410-2013-00369X
Agency No. HHS-CDC-0418-2012
DECISION
On September 19, 2014, Complainant filed an appeal from the Agency's August 18, 2014, 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 accepts the complaint
pursuant to 29 C.F.R. � 1614.405(a). 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) decision without a hearing which found that Complainant did not demonstrate that he was subjected to discrimination, reprisal and/or a hostile work environment.
ISSUE PRESENTED
The issue presented is whether Complainant was subjected to discrimination, reprisal, and or a hostile work environment with regard to management's work decisions.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Senior Health Scientist, GS-14 at the Agency's Center for Disease Control and Prevention, Office of State, Tribal, Local and Territorial Support facility in Atlanta, Georgia.
On September 19, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Seneca Indian), national origin (Seneca Indian), religion (Catholic/Long house), color (medium Brown), and reprisal for prior protected EEO activity when:
A. The Office of State, Tribal, Local and Territorial Support (OSTLTS) office created a written policy dated December 6, 2011, that specifically targeted Complainant by excluding him from certain program activities/assignments related to American Indian tribal activity;
B. The OSTLTS office used this internal policy to intimidate, harass, and interfere with Complainant's pursuit of pending EEO matters against the Agency;
C. On February 13, 2012, because of his race, Complainant was denied the opportunity to conduct a program review (site visit) of one of his grantees and assist with facilitating a Capability Building Assistance training as one of his official job duties as a Project Officer;
D. On January 30, 2012, Complainant was subjected to disparate treatment when he was denied the opportunity to attend the Bi-Annual meeting of the Tribal Advisory Committee (TAC) and the 8th Tribal Consultation Session;
E. On May 14, 2012, Complainant was denied the opportunity to honor a request from the University of Buffalo (UB) to be featured in an article of the UB Today Alumni Magazine;
F. On February 24, 2012, Complainant was confronted with an unwarranted official memorandum requesting all of his Tribal contacts and email addresses and was threatened with disciplinary action if he failed to comply; and
G. Management denied or restricted Complainant from participating in any American Indian or Tribal activity or work;
On October 15, 2012, Complainant, through his attorney, requested that his complaint be amended. In this amendment, Complainant alleged that he was subjected to discrimination based on reprisal (prior protected EEO activity) and subjected to harassment (nonsexual) when:
H. On October 15, 2012, he was told that he had to submit his request for outside activities at least 10 working days in advance and that management was considering corrective actions based on his June 22, 2012 outside activity.
On December 19, 2012, Complainant, through his attorney, requested that his complaint be amended for a second time. In this amendment, Complainant alleged that he was discriminated against on the bases of race (Seneca Indian), color (medium brown), religion (Catholic/Long house), national origin (Seneca Indian), reprisal (previously filing an EEO complaint), and subjected to a hostile work environment and continuous harassment, when:
1. On November 9, 2012, he was issued a Letter of Reprimand; and
2. On December 5, 2012, management cancelled a course that he was approved to teach at the University of Georgia.
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 (AJ). Complainant timely requested a hearing. The AJ assigned to the case determined that the complaint did not warrant a hearing and over Complainant's objections, issued a decision without a hearing on July 16, 2014. 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. Specifically, the AJ found that with regard to claim A, the policy applied to all similarly situated employees not just Complainant. Regarding claim B, the Agency maintained that Complainant was not aggrieved and that he did not demonstrate the existence of any correlation between his protected activity and the policy.
With regard to claim C, the Agency maintained that site visits and trips were routinely cancelled during the regular course of the Agency's business. Moreover, the Agency maintained that Complainant was not aggrieved and that the Agency's actions did not affect a term, condition, or privilege of employment. For claim D, the Agency maintained that there was no business need for Complainant to attend the meeting at issue. The Agency indicated that his attendance at the meeting was not job related.
Regarding claim E, where Complainant alleged that the Agency denied his request to appear in an article, the record showed however that Complainant postponed the article until the winter issue, and that management approved the article two days before the interview. Complainant stated that he had to provide proof of the content of the article to make sure it was not related to his job at the Agency. He stated that being denied the opportunity to appear in the article made the Agency a difficult place to work; a place that did not value his contributions. As such, the Agency indicated that Complainant was given approval to be featured in the article at issue, after Complainant provided the necessary clarifications about the article's content.
On February 24, 2012, Complainant asserted that with respect to claim F, he was confronted with an unwarranted official memorandum requesting all his Tribal contacts. The Agency maintained that the request was made to ensure that relevant contacts continued to receive CDC tribal and native public health communication from the CDC. The Agency indicated that the information was requested in furtherance of the Agency's mission. With regard to claim G, Complainant claimed that management denied or restricted him from participating in any American Indian or Tribal activity or work. The Agency maintained that it was not Complainant's role to work on such issues.
Regarding claim H, Complainant's amended claim, Complainant indicated that he was told to submit his request for outside activities at least ten (10) working days in advance. The Agency explained that Complainant was not treated less favorably than any similarly situated employees as it was the Agency's policy to require at least thirty (30) days' notice for a request for outside activities. Consequently, Complainant was held to a lower standard.
With respect to Complainant's second amended claim, where he maintained that he was subjected to discrimination, reprisal and a hostile work environment when: (1) on November 9, 2012, he was issued a Letter of Reprimand; and (2) on December 5, 2012, management cancelled a course that Complainant was approved to teach at the University of Georgia. The Agency explained that with regard to claim 1, Complainant was reprimanded because he engaged in outside employment or other activities without the required prior approval, and failed to submit accurate time and attendance information. The Agency also maintained that Complainant failed and refused to follow instructions and neglected his duty.
With regard to claim 2, Complainant stated that he was asked to teach a course at the University of Georgia and he notified the Agency in April or May 2012. Complainant stated that he canceled the course in November 2012 after consulting with his attorney and the University. He stated that a university representative told him that the reprimand he received looked like a trap by the Agency. He stated that because of time constraints regarding the registration schedule, he was forced to withdraw from teaching the class, which upset him greatly. Complainant maintained that he canceled the class because he would not have been able to use Agency resources and staff to assist in teaching the course. He indicated that he believed this act was discriminatory because other CDC staff taught courses all of the time. Complainant stated that he was embarrassed by having to cancel the course and it hurt his reliability as a Seneca Indian. As such, the Agency asserted that it was Complainant that cancelled the course, not management.
The AJ found that Complainant did not show that he was aggrieved or that he was treated less favorably than similarly situated employees outside of his protected status under the same or similar circumstances. Further, Complainant did not demonstrate that he was subjected to conduct by the Agency which would have dissuaded a reasonable employee from making or supporting a charge of discrimination. Moreover, there was no evidence that Complainant's workplace was so permeated with discriminatory intimidation, ridicule, and insult that one could reasonably, or logically, infer that it was attributed to his protected status. The AJ found that the Agency articulated legitimate, nondiscriminatory reasons with respect to Complainant's reprisal claim and he did not show that the reasons were pretext. Accordingly, the AJ found that a decision without a hearing was appropriate because the evidence did not support Complainant's allegations of discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ erred in issuing a decision without a hearing as two management witnesses that could have proved his prima facie case were not interviewed. Complainant contends that he addressed the importance of these witnesses in a motion for sanction but the AJ did not consider statements from them. Complainant therefore argues that the record was not complete and that a decision without a hearing should not have occurred.
In response, the Agency maintains that the AJ correctly issued a decision without a hearing because there were no material facts at issue. The Agency asserts that the AJ assumed that Complainant established a prima facie case so the witnesses were not needed for that purpose.
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").
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. 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). In the instant case, we find that the record was adequately developed and no material facts are at issue. Accordingly, we find that the AJ properly issued 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 assuming arguendo that Complainant established a prima facie case of reprisal and discrimination as to all stated bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, the Agency maintained that with respect to claims A through G, that the incidents complained of by Complainant were either not related to his actual job, or were not attributable to the Agency. Management explained that as a rule, they did not prevent Complainant from working on American Indian activities but the Complainant wanted to work on American Indian activities all of the time, without regard for his assigned duties. Management indicated that Complainant would get requests from personal friends to participate in activities and thereafter would expect the Agency to approve them even though it was not related to his assigned responsibilities.
With respect to claim H, evidence showed that Complainant was in fact treated more favorably than his coworkers when he was told to submit his request for outside employment at least ten (10) working days in advance when other employees had to provide thirty (30) days' notice. With respect to the reprimand, the evidence showed that Complainant was reprimanded because he engaged in outside employment without the required approval. Finally, with regard to the cancellation of the class that Complainant was scheduled to teach, the evidence showed that Complainant cancelled the class, not management.
With respect to Complainant's contentions on appeal that the two Agency witnesses, who were not allowed by the AJ, would have established a prima facie case, we find that Complainant did not demonstrate that the evidence that they would have provided would have established his prima facie case. Notwithstanding, the Commission, like the AJ, assumed arguendo that a prima facie case was established by Complainant in reaching the decision that he was not discriminated against. Thereafter, the Agency articulated legitimate, nondiscriminatory reasons for its actions as was discussed above. The burden then returned to Complainant to establish that the Agency's reasons were pretext for discrimination. We find that Complainant did not present any evidence which suggests that reprisal or discriminatory animus was involved in these matters.
Finally, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
CONCLUSION
Accordingly, we AFFIRM the Agency's final order which found that Complainant did not demonstrate that he was subjected to reprisal, discrimination and/or a hostile work environment.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests 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 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
__10/28/16________________
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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