01A52443
07-06-2006
Ervin L. Butler Jr., Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Ervin L. Butler Jr.,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A52443
Hearing No. 100A40216X
Agency No. 0263285003
DECISION
JURISDICTION
On February 14, 2005, complainant filed an appeal from the agency's
January 6, 2004 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). For the following reasons, the Commission
AFFIRMS the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant
worked as an Investigator, GS-1810-11, at the agency's Naval Criminal
Investigative Service in Okinawa, Japan. On May 7, 2002 complainant
contacted an EEO Counselor and filed a formal EEO complaint on June 22,
2002, alleging that he was discriminated against on the basis of race
(African-American) when:
1. he was selected for a position at the Grade 11, rather than Grade 12,
level for the GS-1810 Investigator position advertised in Job Announcement
CAPPNWS02-1810-002, which closed on January 23, 2002;1
2. he was required to maintain an unreasonable production quota;2 and
3. he was subjected to unnecessary progress reviews.
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. On October 21, 2004, the agency moved for a
decision without a hearing in its favor. Complainant did not submit
a Brief opposing the agency's Motion. The AJ determined that the
complaint did not warrant a hearing and issued a decision without a
hearing on November 19, 2004. 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.
ADMINISTRATIVE JUDGE'S DECISION
The AJ incorporated the agency's Motion and supporting statement
into his decision. The AJ then found that the record contains no
evidence indicating that complainant was treated less favorably than
similarly situated employees of a different protected status in similar
circumstances, with respect to any of his allegations; or that his race
was a factor with respect to any of the three claims. The AJ found that
moreover, the agency has explained all of its actions, including its
decision to select complainant at the GS-11 level, pursuant to Vacancy
Announcement CAPNWS02-1810-007, and its production goal and performance
progress review policies applicable to complainant for nondiscriminatory,
substantive and legally sufficient reasons; and complainant offers no
evidence of pretext with respect to any of these matters.
The AJ then found that implicit in complainant's complaint is his
allegation of being subjected to harassment because of his race. However,
the AJ found that complainant is unable to establish harassment/hostile
environment claim because the unpleasant workplace exchanges he identifies
which involve his documented performance shortcomings, however repugnant
to complainant, simply do not give rise to a cause of action pursuant to
civil rights laws. The AJ further found that the specific activities
complainant describes - being placed in the GS-11 job for which he
applied, required to meet performance goals, issued corrective action
for documented performance shortcomings and the like - do not constitute
harassment. The AJ also found that complainant is unable to show that
the interpersonal exchanges with management over these matters, whether
considered separately or together, could be characterized as permeating
complainant's workplace with discriminatory intimidation, ridicule, and
insult that is sufficiently severe or pervasive to alter the conditions
of complainant's employment and create an abusive environment. The AJ
found that even if such incidents constituted harassment, as noted above,
the record contains no evidence, and complainant offers no evidence,
indicating that his race motivated, or played any role in any of these
actions or incidents. In its final order, the agency implemented the
AJ's decision.
CONTENTIONS ON APPEAL
Complainant has submitted a lengthy brief in support of appeal, in which
he makes the following principal contentions:
(1) The agency failed to accurately accept his claim of
discrimination. Specifically, his claim is not moot, since although he was
selected for the position in question, it should have been at the GS-12
level. He notes that he has still not been promoted to the GS-12 level.
(2) He appeals the fact that his complaint was addressed via e-mail.
He contends that no one was ever interviewed telephonically.
(3) He appeals the fact that the AJ stated that the cost of a hearing
was too expensive and that the agency did not have the budget to pay
for the travel and expense for a hearing in Japan.
(4) He contends he had been further harmed because the agency is currently
discussing policy to change the Journeyman Level of 1810 Criminal
Investigators to GS-13 after 5 or so years of successful performance,
to be in line with other professionals at the agency.
(5) He appeals because the agency now contends that his non-selection
was an issue of performance, yet he has never been counseled verbally,
or in writing, by any supervisor concerning a lack of performance.
(6) He suggests that the idea that the Commission will not address
issues during appeal that were not accepted by the agency as part of
the complaint should be reconsidered.
(7) He states that he never agreed upon any performance goals as stated
by the agency. He states that he always considered himself as being
placed on a quota, and always tried to express to his manager that his
desires were unreasonable.
(8) He contends that a quota of a minimum of 30 cases per week was placed
on him, and on no other 1810.
(9) He contends that at no time did his former supervisor ever counsel him
or address any issues with him concerning a lack of work performance.
(10) The number of cases assigned to him (455 to 650) was unreasonable
under any circumstances.
(11) Other 1811 agents were required to complete 10 cases per month,
which they often did not.
(12) He disputes the argument that he has no one to be compared with.
The fact that he is the only African-American assigned to Okinawa,
Japan should not subject him to disparate treatment or punishment.
(13) His non-African American counterpart in Yokusuka, Japan was promoted
to GS-12, while complainant was not despite the fact that they were in
the same position.
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 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").
ANALYSIS AND FINDINGS
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).
The allocation of burdens and order of presentation of proof in a
Title VII case alleging disparate treatment discrimination is a three
step procedure: complainant has the initial burden of proving, by a
preponderance of the evidence, a prima facie case of discrimination;
the burden then shifts to the employer to articulate some legitimate,
nondiscriminatory reason for its challenged action; and complainant must
then prove, by a preponderance of the evidence, that the legitimate reason
offered by the employer was not its true reason, but was a pretext for
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Assuming arguendo that complainant established a prima facie case of
discrimination as to issue (1), the agency has articulated a legitimate,
nondiscriminatory explanation for its action. Specifically, the agency
states the following: complainant was hired on or about March 1, 1999 as a
GS-1810-11 Investigator, with no promotion potential beyond the pay grade
of GS-11. In December 2001, GS-1810-7/9/11/12 Investigator positions were
created for Yokosuka, Japan and Okinawa, Japan. As the new positions were
announced, the GS-1810 employees were allowed opportunities to compete
for these jobs with greater promotion potential. NCIS Job Opportunity
Announcement CAPNWS02-1810-002 was a job announcement for the position
of Investigator with the NCIS Far East Field Office in Yokosuka, Japan.
The opening date for the job was January 2, 2002, and the closing date
was January 23, 2002. The listed pay grade of the job was Grade 12.
The individual selected for CAPNWS02-1810-002 was a White male. However,
complainant did not apply for the job listed under CAPNWS02-1810-002.
The position in Okinawa, Japan was announced as a Grade 11 position, under
Job Opportunity Announcement CAPNWS02-1810-007. On the announcement, the
area of consideration was "current NCIS employees in the local commuting
area". Complainant was the only GS-1810 Investigator employed by the
agency in Okinawa, Japan. Complainant applied for the position and was
the only individual listed on the competitive certificate. The Resident
Agent in Charge (RAC) selected complainant for the position on February
26, 2002. Complainant accepted the new position as GS-1810, Grade 11.
His selection for the position improved his situation because under the
new position, he has promotion potential to the Grade 12 level. The RAC
stated that he had advised complainant on numerous occasions that when he
demonstrates that he can meet the goal agreed upon for his level of effort
(15 cases per week), then he will assign him additional duties. The RAC
stated that upon assignment of additional duties and a recommendation
from his supervisor, he would initiate the process for upgrade of his
position to GS-12.
In an attempt to establish pretext, complainant contends that since
he is the only person held to such standards, and he is the only
African-American working cases, and there is no other logical reason,
the reason for the treatment he received has to be based on his race.
He additionally states that based on other incidents of inconsistent
treatment towards African-Americans by the RAC, and comments made by other
co-workers, he feels that the RAC does not consider African-Americans
with as much regard as he does Whites. Some examples are that the RAC
forbade an African American sailor to date local national females, yet
he authorized a White sailor to marry one. Complainant asserts that the
RAC dismissed the African-American sailor from his assignment with NCIS
after he appeared as a victim of assault on a police blotter as a result
of an incident related to the local national female. Complainant states
that the African-American sailor has since been discharged from the USN.
He further states that when the wife of the White sailor made a complaint
of his alcohol abuse, physical and sexual spouse abuse, and threats of
physical harm to her child from a previous relationship, he was allowed
to go on leave to think things through. Complainant states that he
was then granted an extension to remain in his position with NCIS.
He states that to date, no action has been taken, and the disciplinary
actions taken against the African-American sailor were totally opposite
than those taken against the White sailor.
A review of the record also reveals testimony from co-workers who indicate
that they do not understand why complainant failed to be promoted to
GS-12, and suggesting that race might be the reason. They do not,
however, provide any specific basis for believing that race motivated
the agency's failure to promote complainant. The Commission finds that
the record is devoid of sufficient evidence that complainant's race was
a motivating factor concerning issue (1).
As to the claims that he was required to maintain an unreasonable
production quota, and that he was subjected to unnecessary progress
reviews, we find that these incidents are properly analyzed under
a harassment framework. 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). As to the alleged
unreasonable production quota compared with others in his position, the
RAC stated that his original goal for complainant was 25 closed cases
per week. He stated that it became apparent that this was not realistic
and in discussion with complainant, they mutually agreed on a reduction
to 20 cases per week. He stated that it again became apparent as time
progressed that complainant was unable to meet this goal, and following
further discussion, they mutually agreed on a reduction to 15 cases per
week. The RAC additionally stated that in order to make his goal more
attainable he reduced complainant's other duties, as well as implementing
several other changes including assigning complainant an intern. The RAC
notes that alleged comparators identified by complainant had other duties
to perform besides working on their caseloads, while complainant only
had to work on cases. In response, complainant states that he never
agreed upon any performance goals, and that he always considered himself
as being placed on a quota, and always tried to express to his manager
that his desires were unreasonable. Even considering these disputes in
the light most favorable to complainant, and assuming that complainant
was expected to do an unreasonable amount of work, we still discern no
indication that complainant's race motivated the alleged harassment.
We find that the evidence in the record is insufficient to support a
finding that management's actions towards complainant were based on
his race. See EEOC Notice No. 915.002 (March 8, 1994), Enforcement
Guidance on Harris v. Forklift Systems, Inc. at 3, 6.
After a careful review of the record, the Commission finds that the
AJ's decision without a hearing was appropriate, as no genuine issue of
material fact is in dispute. See Petty v. Department of Defense, EEOC
Appeal No. 01A24206 (July 11, 2003). Further, construing the evidence
to be most favorable to complainant, we conclude that complainant
failed to present evidence that the agency's actions were motivated by
discriminatory animus toward his protected class. Therefore, we AFFIRM
the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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 6, 2006
__________________
Date
1 Complainant contends that he was already in this position (at GS-11)
when the position description was re-written, and he was made to re-apply.
Complainant claims that the RAC intentionally failed to notify him of
the upcoming announcement of the position he already held, and that he
had to scramble at the last minute to get his application submitted.
2 Complainant states that S1 also informed him that he would continue
to interfere with any promotion for him until he consistently met the
quota.
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01A52443
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
9
01A52443