0120140653
05-19-2016
Ellsworth D.,1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (Bureau of Alcohol, Tobacco, Firearms & Explosives), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ellsworth D.,1
Complainant,
v.
Loretta E. Lynch,
Attorney General,
Department of Justice
(Bureau of Alcohol, Tobacco, Firearms & Explosives),
Agency.
Appeal No. 0120140653
Hearing No. 530-2007-00433X
Agency Nos. ATF-2006-00316
ATF-2007-00125
ATF-2008-00122
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's December 4, 2013 final order concerning the three captioned EEO formal complaints which claimed unlawful 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Special Agent at the Agency's Group 2, Arson and Explosives, Philadelphia Field Division in Philadelphia, Pennsylvania.
On June 5, 2006, December 27, 2006, and January 19, 2008, Complainant filed the instant formal complaints. Therein, Complainant alleged that he was subjected to harassment and a hostile work environment on the bases of race (Caucasian), sex (male), age (over 40), and in reprisal for prior EEO activity when2:
1. on May 30, 2005 and April 10, 2006, his training requests were denied (Agency No. ATF-2016-00316);
2. on April 26, 2006, his request for leave under the Family Medical Leave Act (FMLA) was denied (Agency No. ATF-2016-00316);
3. on or about October 23, 2006, he received negative and false remarks on his FY 2006 performance appraisal (Agency No. ATF-2007-00125); and
4. on or about February 23, 2007 to March 2, 2007, he was subjected to increased surveillance (Agency No. ATF-2008-00122).
The Agency consolidated the three formal complaints and conducted an investigation. Complainant was provided a copy of the investigative files, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing.3 On October 22, 2013, the AJ issued a decision by summary judgment in favor of the Agency.
In finding no discrimination by summary judgment, the AJ found that the record developed during the investigation established the following undisputed facts. Complainant started working for the Agency in 1999 as a Special Agent. The AJ noted that in regard to claim 1, Complainant requested training for a counter terrorism course sponsored by the United States Air Force in May 2005 and April 2006. The Agency denied Complainant's May 2005 training request because of a conflict with a biotech conference for which Complainant's unit was providing security coverage. The Agency also denied Complainant's April 2006 training request because the training was one week long and Complainant was needed at his division during the relevant period.
The AJ noted in his affidavit, Complainant's supervisor stated that his response to Complainant's May 2005 and April 2006 training requests "was to deny them both. For the one in May of 2005, all the Agents in the Group were going to be involved in a security function at a Biotechnology Conference that was taking place at or around the same time. I explained to [Complainant] that we were more than likely going to need all the resources of the group...I was not going to authorize any training at that time. The second reason, as I had told all the Agents in the group when I first came over into this position, was that I supported any training opportunities. But the training had to be relevant to the day-to-day functions of their job. I did not feel that the [terrorism] training was relevant to [Complainant's] duties in Arson and Explosives. My group handles primarily, since I have been here in 2004, arson investigations...by mandate the DOJ and ATF are supposed to support terrorism issues or activities related to terrorism prevention. However, my Group and ATF in Philadelphia have been dealing with domestic issues that have not been found to be related to terrorism."
Regarding claim 2, the AJ noted that the record reflects that Complainant acknowledged withdrawing his FMLA request. The AJ further noted that while Complainant claimed he only withdrew his request because the supervisor told him it would be denied, he did not show that he was treated differently than similarly situated employees.
The supervisor stated that he was not hostile towards Complainant concerning his FMLA leave request. Specifically, the supervisor stated "if I was trying to deny [Complainant] purposely, he would have been denied May 10 and 11, 2006 in total. I let him take the last four hours of leave on May 11, 2006."
Regarding claim 3, the AJ noted that the supervisor stated that during the mid-year evaluation of Complainant for FY 2007, he made Complainant aware of the need to improve by paying careful attention when preparing reports and to seek out ways to assist others in the Group. However, despite this counseling, Complainant did not make any effort to improve in the areas mentioned. For instance, the supervisor stated that Complainant's rating went from 6 to 5 in the element of Judgment for FY 2007 than FY 2006 "because he had failed to work at improving in this area which had been pointed out to him on numerous occasions. His performance was worse because he continued to come up short in being able to provide direct evidence and prove the elements of the crimes to which he was charging in some of his investigations. His submitted case reports continued to be returned for additional information in order to substantiate the alleged charges."
Further, the supervisor stated that in regard to the element of Teamwork, Complainant's rating went from a 5 to a 4 "because he failed to work at improve[ing] in this area which had been pointed out to him on numerous occasions. His performance was worse because he continued to refuse to confer with the undersigned to see if others in the group needed any assistance and despite numerous counselings, to include his FY 2006 appraisal, he still did not seek to proactively provide assistance." As for the Oral communication element, Complainant's rating went from a 6 to a 5 "because of unwillingness to verbally interact with the undersigned...in addition, it had been noted by senior agents in the group that [Complainant] had some trouble explaining elements of proof and sequence of investigation events to them when requested."
Regarding claim 4, the AJ noted that it was undisputed that on February 23, 2007, the supervisor sent an email to all employees in his group, including Complainant, that effective immediately, no Group II employee would be able to go to the Customs House without first getting prior authorization from him. The AJ determined that Complainant did not show that his requirement only referred to him.
Based on these facts, the AJ concluded that Complainant did not establish a prima facie case of discrimination on any of the bases alleged and, even if he had, the responsible management officials articulated legitimate, non-discriminatory reasons for its actions. The AJ then determined that Complainant failed to prove, by a preponderance of the evidence, that these articulated reasons were a pretext designed to mask the true discriminatory or retaliatory motivation.
The Agency fully implemented the AJ's decision in its final order. The instant appeal followed.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she 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).
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.
On appeal, Complainant argues that the AJ erred in issuing summary judgment because there are material facts at issue. However, in order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. While Complainant has, in a very general sense, asserted that facts are in dispute, he has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute.
We find that the AJ's findings of fact are supported by the substantial evidence in the record and that the AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. The undisputed facts fully support the AJ's determination that the responsible management officials clearly articulated legitimate, non-discriminatory reasons for its actions. After careful review of the record, as well as the arguments presented on appeal, we conclude that Complainant failed to prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask discrimination on any basis alleged.
The Agency's final order implementing the AJ's decision without a hearing, finding no discrimination, is AFFIRMED.
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
May 19, 2016
__________________
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.
2 The record reflects that during his deposition, Complainant withdrew race as a basis.
3 The record does not contain a copy of the Agency's motion for a decision without a hearing. We nevertheless determine that there is sufficient documentation of record to issue a decision, even in the absence of this motion.
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