0120162446
05-25-2018
Gabriele G.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Gabriele G.,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120162446
Hearing No. 471-2011-00098X
Agency No. ARTACOM07OCT4220
DECISION
On July 23, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's May 31, 2016, final action 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.2
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Quality Assurance Analyst, NH-1910-03 at the Agency's Tank Automotive Research Engineering and Development Center at the Life Cycle Management Command in Warren, Michigan.
On December 5, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to harassment on the bases of race (African-American), age (55), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 when:
1. On or about January 7, 2009, Complainant requested two days of annual leave from his supervisor (Supervisor, White, 40, no prior EEO activity) but was only given one day and when he returned to work on January 9, 2018, the Acting Associate Director (White, 41, aware of Complainant's prior EEO activity) questioned his whereabouts.
2. On February 1, 2009, the Acting Associate Director made negative comments under the section Leadership/Supervision, Part II Supervisor's Assessment on his annual Contribution-Based Compensation and Appraisal System (CCAS) performance evaluation for the period of October 17, 2006 through September 30, 2007, although the Acting Associate Director did not have any face-to-face discussions with Complainant during the rating period, and should not have rated him.
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. Subsequently, Complainant amended his complaint to include the following claims:
3. At a meeting on June 9, 2011, the Acting Associate Director repeated a statement made by the Supervisor at the Fact-Finding Conference that an Agency Official had a policy of speaking to someone when calling in for leave on the same day. Complainant asserts that the statement was intimidating and retaliatory and violated the EEO Investigator's instruction that witnesses not discuss their testimony.
4. The amended EEO Complaint filed by Complainant was unnecessarily delayed by the EEO Office and was not investigated in a timely manner.
5. The Agency's Representative failed to provide requested documents requested by Complainant's first representative and himself, even though the Agency's Representative stated on record that she would provide them within a short time frame (a week or two).
6. The Agency's representative at the Fact-finding Conference, on May 26, 2011, deliberately intimidated Complainant and made a mockery on statements that the Agency's witnesses made that Complainant was slow and attempted to demonstrate a comparison. Witnesses included the investigator and the court reporter.
On November 26, 2014, the AJ granted Complainant's request to amend the complaint to include claims (3) and (4). However, the AJ denied claims (5) and (6). The AJ noted that claim (5) was dismissed for failure to state a claim noting that Complainant's claim involved the Agency's production of documents requested by Complainant. The AJ stated that the proper manner to raise such a claim was within a motion to compel before the AJ. As to claim (6), the AJ noted that Complainant alleged a collateral attack on the Fact-Finding Conference. The AJ found that such a claim was not properly before the AJ. There is no indication that Complainant challenged the AJ's decision or the AJ's statement of claims.
Over the Complainant's objections, the AJ granted the Agency's December 29, 2011, motion for a decision without a hearing. The record indicated that on December 11, 2014, Complainant requested that the matter be held in abeyance as he was deployed to Afghanistan from October 2014 through November 2015. The AJ eventually granted the request on July 1, 2015. Complainant filed supplemental information on January 29, 2016. Subsequently, the AJ issued her decision on May 24, 2016, finding no genuine issues of material fact.
As to claim (1), the AJ noted that Complainant requested leave for January 7, 2009 and part of the day on January 8, 2009. Complainant's leave had been approved by the Supervisor. On January 9, 2009, Complainant asserted that management questioned him about his whereabouts on these dates. The Supervisor noticed Complainant had not signed the leave book nor had he seen Complainant on January 8, 2009. The Supervisor mentioned it to the Acting Associate Director wondering if Complainant had taken leave for the whole day on January 8, 2009. As such, the Acting Associate Director asked Complainant where he had been the last two days. Complainant provided the Acting Associate Director with an answer who found the issue resolved. The AJ determined that Complainant had not been aggrieved by the event listed as claim (1). Further, the AJ noted that the record showed that the Acting Associate Director had previously talked to Complainant and other employees about tardiness, attendance and leave. In addition, the AJ held that the Agency provided legitimate, nondiscriminatory reason for asking Complainant about his whereabouts when the Supervisor did not see him in the office when Complainant had only requested leave for half of the day. Management indicated that they were merely asking if Complainant was to take leave for the whole day on January 8, 2009. The AJ found that Complainant did not challenge the Agency's version of events and that the event seemed like a routine action for management.
As to claim (2), the AJ found that Complainant was incorrect in his claim. The AJ determined that the Team Leader (White, 44, no prior EEO activity) added the comments in question. The comments in question were: "[Complainant] was involved with the team leading the development of vehicle SOW's to be used in procurement. Proper documentation early will help to resolve quality issues later in the program." The AJ noted that these comments were not negative. Complainant asserted that the Acting Associate Director could not rate him because they did not have a face to face discussion. The AJ determined that the Team Leader was appropriate to provide input for Complainant's performance in lieu of the Acting Associate Director. The AJ held that Complainant failed to provide any evidence to challenge the Agency's legitimate, nondiscriminatory reason. As such, the AJ concluded that Complainant did not show that he was subjected to discrimination as alleged.
In response to claim (3), the AJ noted that Complainant raised these claims as bald assertions without any basis. Further, the AJ determined that Complainant showed no harm regarding the allegation that the Associate Director repeating a statement by the Supervisor at the fact-finding conference.
Finally, as to claim (4), the AJ noted that Complainant had filed his formal complaint in December 2007. He had requested an amendment to his complaint which was accepted by the Agency on March 31, 2009. However, the claims were not investigated. The AJ determined that Complainant failed to provide any evidence to support his assertion that the EEO Office intentionally delayed his complaint in order to subject him to retaliation. As such, the AJ concluded that Complainant failed to show that he was subjected to discrimination with respect to claim (4).
The Agency subsequently issued a final action adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
Complainant appealed asserting that he had amended his complaint before the AJ to include four additional claims, not just (3) and (4). He believed the claims were all accepted. Complainant alleged that the AJ erred by failing to address all the claims of discrimination alleged. Complainant asserted that in claim (1) he was being harassed about his leave use. Complainant argued that the comment alleged in claim (2) were used in his removal and was clearly not positive. In response to claim (3), Complainant asserted that the Agency officials were clearly aware of Complainant's EEO activity when he testified during the Fact-finding Conference when he made his statement in the Agency's report of investigation. Complainant believed that the Associate Director's comment was suspicious because it was a repeat of the comments made by the Supervisor. Finally, Complainant asserted that the Agency delayed the processing of his amended complaint.
The Agency requested that the Commission affirm its adoption of the AJ's decision finding no discrimination.
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.
Dismissal of Claims (4), (5) and (6)
On appeal, Complainant asserted that the AJ erred in failing to address all of his amended claims. We note that the AJ issued her Order dated November 26, 2014, dismissing claims (5) and (6) for failure to state a claim. We presume that the AJ relied upon 29 C.F.R. � 1614.107(a)(1) for the dismissal of these claims. Upon review of claims (5) and (6), Complainant alleged discrimination regarding the processing of the complaint by the EEO office and the Agency's Representative during the hearing process. EEOC Regulation 29 C.F.R. � 1614.107(a)(8) provides that an agency shall dismiss a complaint that alleges dissatisfaction with the processing of a previously filed complaint. Chapter Five of the EEOC Management Directive 110 (MD-110) (Aug. 5, 2015) defines such a complaint as a "spin-off" complaint. We find Complainant is attempting to raise "spin off" complaints. The proper forum to raise such allegations as claim (6) would have been with the Agency Official responsible for complaint processing. As for claim (5), the AJ indicated that Complainant was complaining about the Representative's actions during the hearing process which should have been raised in a Motion to Compel before the AJ. As such, we find that the AJ properly dismissed claims (5) and (6).
In addition, we note that the AJ should have similarly dismissed claim (4) pursuant to 29 C.F.R. � 1614.107(a)(8). In claim (4), Complainant alleged that the Agency improperly processed his requests for amendments to his prior EEO complaint. We note that Complainant had raised this matter with the Commission in the processing of his prior appeal in EEOC Appeal No. 0120101847 (Sept. 16, 2010). As such, we find that this claim not properly raised as a separate claim. Therefore, we dismiss claim (4).
Dismissal of Claim (3)
In claim (3), Complainant alleged that the Acting Associate Director repeated the statements of the Supervisor during the Fact-finding Conference on May 27, 2011. We note that the Agency's investigation of the instant EEO complaint included the Fact-finding Conference which occurred over May 26-27, 2011. As such, in claim (3), Complainant alleged discrimination regarding a statement made during the investigation of the instant EEO complaint. The Commission has held that comments made during the investigation of a complaint fail to state a claim. See Blinco v. Dep't of Treasury, EEOC Request No. 05940194 (May 25, 1994); Calloway v. Dep't of the Army, EEOC Appeal No. 01943406 (July 18, 1994). There is no evidence that the alleged comments were made outside of the EEO process or to persons not associated with the process. See Johnson v. Social Security Admin., EEOC Request No. 05950288 (June 27, 1996); Parks v. Dep't of Defense, EEOC No. 01945626 (Jan. 17, 1995); Zeske v. U.S. Postal Serv., EEOC Appeal No. 01964096 (April 11, 1997). Moreover, the Commission has consistently held that generally, a remark or comment unaccompanied by concrete action is not a direct and personal deprivation sufficient to render an individual aggrieved. See Simon v. U.S. Postal Serv., EEOC Request No. 05900866 (October 3, 1990). Therefore, we find that claim (3) should have been dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
Claims (1) and (2)
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case 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. 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. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary's Honor Ctr. 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, we find that the AJ correctly determined that the Agency articulated legitimate, nondiscriminatory reasons for its actions. As for claim (1), management indicated that Complainant had requested leave for half a day on January 8, 2009, however they did not see him nor did he sign the leave book. As such, the following day, Complainant was asked if he had taken a full day of leave on January 8, 2009. In response to claim (2), the AJ noted that the comment on its own did not appear to be "negative" as asserted by Complainant. However, the AJ held that the Team Leader had provided input into Complainant's performance appraisal and the Acting Associate Director edited them. The Team Leader averred that he wanted to provide Complainant with a responsive comment to Complainant's self-assessment to provide him guidance to focus on moving forward and his future performance. Finding that the Agency provided legitimate, nondiscriminatory reasons for its actions, we turn to Complainant to establish that the Agency's reasons were pretext for discrimination. Upon review, we find that Complainant failed to do so. As such, we conclude that the AJ correctly determined that Complainant failed to establish that the Agency's actions in claims (1) and (2) constituted discrimination based on his race, age, and/or prior EEO activity.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final action implementing the AJ's decision without a hearing.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 25, 2018
__________________
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 We note that Complainant indicated that he received the Agency's Final Action on June 23, 2016.
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