0120170283
09-11-2018
Genaro D.,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Genaro D.,1
Complainant,
v.
Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Federal Emergency Management Agency),
Agency.
Appeal No. 0120170283
Hearing No. 570-2015-00435X
Agency No. HS-FEMA-01615-2013
DECISION
On October 19, 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 September 21, 2016, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Reservist, FEMA Qualified Specialist, Hazard Mitigation Insurance Specialist at the Agency's response center for the Hurricane Sandy Disaster relief facility in New Jersey.
On June 25, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On June 12, 2013, the Floodplain Management and Insurance Group Supervisor (SL Supervisor) demobilized Complainant and deployed another Specialist.
2. On May 31, 2013, the SL Supervisor developed an Excel Spreadsheet to track his time in the field.
3. On April 20, 2013, the SL Supervisor removed some of his work tasks and responsibilities.
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. After both parties submitted motions for a decision without a hearing, the AJ assigned to the case issued a decision without a hearing on August 11, 2016. 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.
The AJ noted the facts not in dispute. Complainant was offered the Team Leader position but declined the position. Subsequently, Supervisor was placed in that position. Complainant and the Supervisor had ongoing issues and Complainant complained to the Second Line Supervisor (SL Supervisor) that the Supervisor was a micromanager. Management attempted to resolve the matter. By May 8, 2013, the Supervisor was removed from Complainant's supervisory chain. On May 23, 2013, Complainant initiated contact with the EEO Counselor. The SL Supervisor learned of Complainant's EEO contact the next day. The Supervisor learned of Complainant's protected EEO activity on May 28, 2013. Prior to the SL Supervisor's arrival, the policy was that staff should work within an eight-hour work day for the purpose of eliminating overtime. In lieu of overtime, staff would accumulate compensatory time and use flexibility to avoid overtime. The SL Supervisor requested the creation of a spreadsheet to track compensatory time and flexible hours for all employees beginning May 17, 2013.
The AJ also noted that, as a matter of routine, group supervisors reported their staffing needs to the Deputy Director and they would follow a resulting demobilization plan. They would send people home as the plan laid out or as the work required. The Agency did not guarantee end dates for deployment due to the fluid nature of work with disasters. On June 3 and 10, 2013, another Specialist informed the SL Supervisor that the Insurance Outreach team would complete their tasks by June 21, 2013. Based on this information, a demobilization plan was created. Complainant had planned on being on vacation from June 12 - June 24, 2013. Complainant was demobilized on June 12, 2013. After he was deployed, an urgent need arose for deployment of additional specialists because of the publication of the flood zone maps. As such, two Specialists were deployed.
The AJ found that the Agency provided legitimate, nondiscriminatory reason for its actions. As for claim (1), the AJ held that the SL Supervisor was informed that work at the Disaster work had decreased and it was determined that Complainant would be sent home. For example, the Agency indicated that when the SL Supervisor arrived, there were four town hall meetings per day. However, by the time Complainant was demobilized, there were only two meetings a week. The Deputy Director communicated to the SL Supervisor that the work would be completed by June 21, 2013. As such, the SL Supervisor determined that there was no other work to be assigned to Complainant. Following the demobilization of Complainant, there was an unexpected increase in Call Center Hotline activity with the publication of new flood zone maps. The new maps were published were on June 17, 2013. The call volume rose and the Governor's office began to question the Agency if it could handle the anticipated call volume. Based on the increase in volume, the SL Supervisor deployed two Specialists. The AJ found that the Agency met its burden. The AJ turned to the Complainant to show that the Agency's reasons were pretext for discrimination. The AJ held that Complainant failed to provide specific evidence to challenge the Agency's assertion that there was decrease in workload prior to Complainant's demobilization particularly related to meetings. Further, the AJ determined that Complainant did not establish that Agency's actions occurred due to his EEO Counselor contact in May 2013.
The AJ then turned to claim (2). The AJ held that Complainant failed to show that the excel spreadsheet to track his time in the field was because of his prior EEO activity noting that the spreadsheet had been created before Complainant's EEO Counselor contact. Assuming Complainant had established a prima facie case, the Agency provided legitimate, nondiscriminatory reasons for its action namely that the Agency wanted to keep track of hours and reduce overtime pay. Management indicated that it kept track of all employees to manage the use of compensatory time and flexibility. The AJ then turned to Complainant to establish that the Agency's reasons for its action were pretext. The AJ concluded that Complainant failed to meet his burden.
Finally, as to claim (3), the AJ determined that there was no dispute that the alleged events occurred prior to Complainant's prior EEO Counselor contact. Therefore, the AJ held that Complainant failed to show that his assignment of duties and responsibilities constituted unlawful retaliation.
The AJ then noted that Complainant alleged that he had been subjected to harassment based on the three events alleged. The AJ found that Complainant did not establish that the alleged events occurred because of his prior EEO Activity. Therefore, the AJ surmised that Complainant did not show that he had been subjected to retaliatory harassment.
This appeal followed. Complainant argued that he did not experience a decrease in workloads. He also asserted that the SL Supervisor was warned that the demobilization of Complainant would be seen as retaliatory. Complainant also challenged the Agency's assertion that the call volume increased after he was demobilized. Complainant argued that the AJ erred in issuing a decision without a hearing in the Agency's favor. Complainant asked that the Commission reverse the AJ's decision and remand the matter for further processing.
The Agency requested that the Commission affirm its final order implementing the decision of the AJ finding no discrimination and/or harassment.
ANALYSIS AND FINDINGS
Decision without a Hearing
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.
Disparate Treatment
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 Complainant failed to establish a prima facie case of unlawful retaliation with respect to claims (2) and (3), noting that these events occurred prior to Complainant's protected activity. Further, as to claim (1), the record supports the AJ holding that the Agency provided legitimate, nondiscriminatory reasons for its action and Complainant failed to establish that the Agency's reasons were pretext for unlawful retaliation.
Harassment
In his harassment claim, in addition to the incidents discussed above, Complainant alleged that the SL Supervisor sent him emails and heightened scrutiny of his work.
To prove his harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, retaliatory animus. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself.
Here, as already concluded above, there is no evidence to support a finding that Complainant's prior protected activity played any role whatsoever in the decisions regarding his demobilization, his assignment of duties, or the SL Supervisor's use of an Excel spreadsheet. In sum, Complainant failed to prove that retaliatory animus played any role in the incidents he proffered as evidence of his harassment claim.
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 order.
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
September 11, 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.
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