0120073314_doc-_0120073315
02-20-2009
Edward J. Rau and Ronald G. Rau, Complainants, v. Michael B. Donley, Secretary, Department of the Air Force, Agency.
Edward J. Rau and Ronald G. Rau,
Complainants,
v.
Michael B. Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal Nos. 0120073314; 0120073315
Hearing Nos. 541-2007-00010X; 541-2007-00009X
Agency Nos. 06WESAMWP002; 06WESAMNP001
DECISION
On July 18, 2007, complainant Edward J. Rau (C1) filed an appeal from
the agency's June 20, 2007 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 appeal is deemed timely and
is accepted pursuant to 29 C.F.R. � 1614.405(a).
On July 18, 2007, complainant Ronald G. Rau (C2), father of C1, filed an
appeal from the agency's June 20, 2007 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 Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. � 791 et seq. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). The Commission exercises its discretion to
consolidate the two appeals for joint processing.1 For the following
reasons, the Commission AFFIRMS both of the agency's final orders.
Appeal No. 0120073314
At the time of events giving rise to this complaint, C1 worked as a
Store Worker, Produce Department, Buckley Air Force Base Commissary in
Aurora, Colorado. On April 3, 2006, C1 filed an EEO complaint alleging
that he was discriminated against on the bases of race (Caucasian/Native
American), sex (male), religion (pagan),2 when:
(1) Effective March 19, 2006, complainant received a 14-day suspension
when other employees did not receive any disciplinary action for the
same infraction.
Complainant also alleged that he was subjected to hostile work environment
harassment by virtue of the following incidents:
(2) On April 18, 2006, the Store Manager did not allow him to listen to
a radio as he worked in the morning prior to the opening of the store and
did not tell the other employees they could not listen to their radios;
(3) Beginning May 9, 2006, the Produce Manager counseled complainant
against working too closely with another employee who asked for his
assistance, but did not counsel the employee he assisted;
(4) The agency did not pay complainant for the two hours during which
the OCI Investigator interviewed him on August 29, 20063; and
(5) The agency reassigned complainant to work the overnight shift in
the Grocery Department.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ assigned to the case determined sua sponte
that the complaint did not warrant a hearing and issued a decision
without a hearing on May 22, 2007.
Specifically, as to the suspension, the AJ found that complainant
failed to establish a prima facie case of discrimination on any of the
alleged bases. Addressing the hostile work environment harassment claim,
the AJ found that considered in the light most favorable to complainant,
the record fails to support the contention that complainant's protected
classes motivated the harassment. The AJ also found that the complained
of harassment was not adequately severe or pervasive to be considered
unlawful. The AJ noted that the record indicated that complainant's
behavior and actions, at least, contributed to the situation about which
he complained. The AJ found no discrimination.
Appeal No. 0120073315
At the time of events giving rise to this complaint, C2 worked as a
Meat Cutting Worker, Meat Department, Buckley Air Force Base Commissary
in Aurora, Colorado. On April 10, 2006, complainant filed a formal
complaint in which he alleged that he was discriminated against on the
bases of national origin (French & German), age (54), and disability4
when, effective March 19, 2006, complainant received a 14-day suspension
when other employees did not receive any disciplinary action for similar
infractions.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ assigned to the case determined sua sponte
that the complaint did not warrant a hearing and issued a decision
without a hearing on May 22, 2007.
Specifically, the AJ found that complainant did not show that he was
disabled pursuant to the Rehabilitation Act, and that he did not otherwise
establish a prima facie case of discrimination on any of the alleged
bases. The AJ further found that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, complainant was
suspended after he had accepted a submarine sandwich (a "salvaged item")
which C1 had obtained from the Delicatessen without permission.5 Further,
when given the opportunity to explain his behavior, complainant showed no
remorse. The AJ found no evidence of a discriminatory motive on the part
of management. The AJ found no discrimination. The agency subsequently
issued a final order adopting the AJ's finding that complainant failed
to prove that he was subjected to discrimination as alleged.
On appeal, complainants contend that they did nothing wrong and nothing
which would warrant a 14-day suspension. Complainants offer their
version of the facts, and generally contend that they have been treated
disparately by management. They also indicate that several employees
have quit working at this facility.
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 EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)
(providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will 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. Department of Defense, 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 both
cases, we find that the AJ properly issued a decision without a hearing.
Suspension
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Assuming complainants could establish a prima facie case of discrimination
on all of their alleged bases, the agency has articulated a legitimate,
nondiscriminatory explanation for its actions. Complainants argue that
others have perpetrated similar conduct but have not been disciplined.
They also assert that the Grocery Manager had stated that it was
alright to take a sandwich once it had been written off as salvaged.
Even assuming complainants' statements are correct, the record simply
fails to indicate that the managers who issued the discipline in question,
more likely than not, acted based on discriminatory or retaliatory animus
against complainants.
Hostile Work Environment Harassment
Based on the standards set forth in Harris v. Forklift Systems, Inc.,
510 U.S. 17 (1993), in order to prevail on a claim of harassment,
complainant must prove that: (1) he was subjected to harassment that
was sufficiently severe or pervasive to alter the terms or conditions
of employment and create an abusive or hostile environment; and (2) the
harassment was based on his membership in a protected class. See EEOC
Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris
v. Forklift Systems, Inc. at 3, 6; Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997). The evidence of record
is insufficient to support a finding that management's actions towards
either complainant were based on their membership in protected groups.
See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on
Harris v. Forklift Systems, Inc. at 3, 6. Based on a thorough review of
the record and the contentions on appeal, including those not specifically
addressed herein, we AFFIRM both final orders.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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
February 20, 2009
Date
1 The Commission may, in its discretion, consolidate complaints filed
by two or more complainants consisting of substantially similar claims
or relating to the same matter. See 29 C.F.R. � 1614.606.
2 During the investigation, complainant added the basis of reprisal
for engaging in EEO activity. Therefore, retaliation was included in
the investigation.
3 The record shows that complainant did subsequently receive this pay.
4 For purposes of analysis only, we assume, without finding, that C2 is
an individual with a disability.
5 Management, in fact, indicates that it was their belief that as many
as three sandwiches may have been taken improperly.
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0120073314
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120073314; 0120073315