0120162347
03-13-2018
Gerard M,1 Complainant, v. Davita Vance-Cooks, Public Printer, United States Government Printing Office, Agency.
0
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Gerard M,1
Complainant,
v.
Davita Vance-Cooks,
Public Printer,
United States Government Printing Office,
Agency.
Appeal No. 0120162347
Hearing No. 570201300416X
Agency No. 1223
DECISION
Complainant timely appealed, pursuant to 29 C.F.R. � 1614.403, the Agency's June 2, 2016 final order concerning an 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 was employed by the Agency as the Painter Leader in the Paint Shop within the Facilities Division at the Agency's Plant Operations facility in Washington, DC.
On July 10, 2012, Complainant filed an EEO complaint alleging discrimination by the Agency on the bases of race (Caucasian) and reprisal (engaging in prior EEO activity) when, upon his return to duty after a suspension in April 2012:
1. He was required to be accompanied by the Assistant Facilities Manager whenever he encountered two of his subordinates in the Paint Shop, thereby denying him full opportunity to perform his duties;
2. His duty hours were changed to a new shift from 1:00 p.m. to 9:30p.m.; and
3. His office was relocated from the Paint Shop to the second floor of Building A.
After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation ("ROI") and notice of right to request a hearing before an Equal Employment Opportunity Commission ("EEOC" or "Commission") Administrative Judge ("AJ").2 Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing. Complainant filed a Motion in Limine, and an Opposition to Summary Judgment.3 The AJ granted the Agency's request, issuing a decision by summary judgment in favor of the Agency, and dismissing Complainant's Motion in Limine. Complainant raises both matters on appeal.
During the relevant time frame, Complainant's first level supervisor was the Foreman, Carpentry Branch (Caucasian) however, Complainant mainly reported to his second level supervisor, the Assistant Facilities Manager ("S2") (African American). Complainant's third level supervisor ("S3") (Caucasian) was the Chief Engineering Officer.
As Painter Leader, Complainant's duties included scheduling and planning assignments and distributing work among the five painters and two printing plant workers he supervised.4 The Paint Shop was responsible for painting, refinishing furniture, and sign production, as well as ancillary duties such as snow removal. Prior to the alleged discriminatory actions on April 30, 2012, Complainant had an office and computer in the Paint Shop, and would check on his reports throughout the day to track progress and quality of the work, and assist with jobs as needed.
In late 2010, two of the painters that Complainant supervised ("P1" and "P2"), both African-American, filed EEO complaints, alleging discrimination on the basis of race, when they became aware that the bonuses they received for work they did renovating the Agency bookstore were substantially lower than the bonuses awarded to the three Caucasian painters on the project. P1 and P2 named Complainant as one of multiple Responding Management Officials ("RMO"), and alleged Complainant used racially inappropriate language in the workplace.5 When employees in the Paint Shop learned about the EEO claims, the Paint Shop atmosphere went from collegial to tense. P1, who used to eat lunch with Complainant and the Painter Forman ("PF") (African-American) stopped speaking to Complainant and others in the shop, as did P2, and both alleged that Complainant retaliated by monitoring everything they did.
In late Summer 2011, P1 "got in Complainant's face" when Complainant assigned him a job he did not like, yelling "I aint't going nowhere, you can't tell me what to do." Another time, Complainant told someone he was under investigation by the Inspector General's Office ("IG") and P1 overheard and came over to Complainant, stating "you showing off for your friends, we can step outside and I'll kick your ass." PF witnessed both instances, but did not act until Complainant looked at him, prompting "are you going to say anything?" In his EEO complaint, P1 indicates that Complainant would "provoke" him into further actions.
In September 2011, based on P1 and P2's EEO complaints, Management asked the EEO Office to conduct a Plant Operations Masonry & Paint Management Inquiry to assess the "climate" of the Paint Shop. EEO Investigators obtained statements from every Masonry & Paint Shop employee, and determined that "inappropriate comments of a racial, ethnic, gender or faith-based nature were typical in the work environment." All the employees identified Complainant as having made racially inappropriate or sexist comments in their presence. Although, one Painter (African-American) clarified in the ER report, discussed below, "slang was used all the time, but everyone had the understanding that certain words were not used, such as the 'n-word.'" Complainant did shout the "c-word" in reference to female politicians and TV shows.
The Employee Relations Office ("ER") was tasked with determining whether, based on the September EEO Report, the Paint Shop employees "exhibited behaviors or conduct in contravention of [Agency] policies." In December 2011, ER issued a report entitled "Administrative Investigation concerning the Paint Shop Work Environment, conducted by Employee Relations at the request of EEO." ER re-interviewed employees still working at the Agency, and drew similar conclusions. Meanwhile, a third report concerning Complainant, dated November 21, 2011, was issued by the Inspector General's Office ("IG"), which, in the course of a non-EEO investigation, found that Complainant "received, viewed, and maintained" images of nude women on his Agency-issued computer and the Agency network system.
On January 11, 2012, Complainant received a "Recommendation for Corrective Action" signed by the Director Operations Support ("D1"), which, based on P1 and P2's EEO complaints, and the reports generated by EEO, ER and IG, recommended Complainant's removal for "use of inappropriate language, poor judgment, improper use of [Agency] computer systems, and lack of candor." In March 2012, A hearing was held with S3 as the deciding official. Complainant's attorney argued that the Agency was engaging in "reverse racism" by making Complainant, a white male in a leadership role, an "easy scapegoat." Complainant argues this as the basis of the instant reprisal allegation. C3 decreased Complainant's corrective action from removal to a 14-day suspension without pay and a 16-day suspension with pay.6
On April 30, 2012, Complainant returned to work, and C3 directed Complainant not to interact with P1 and P2 or enter the Paint Shop unless S2 was present. Complainant's hours and workspace were changed so that they corresponded with those of S2. The changes severely restricted him from performing supervisory duties, because not only was he relocated to a different office, but he was in a different building than the Paint Shop, and if S2 was not available, he could not check on the jobs he assigned or his subordinates. In his new space, Complainant alleges he spends his days "sitting there doing nothing." Complainant was told by S3 and S2 that the arrangement would last for the foreseeable future. Complainant noted that neither P1 nor P2 had been subjected to any changes to their work schedules, and received much lighter disciplinary actions even though they threatened him with violence.
The Agency issued its final order adopting the AJ's finding that Complainant failed to prove discrimination as alleged. The instant appeal followed.
ANALYSIS
The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). 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. 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, � VI.B. (as revised, August 5, 2015)(providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo).
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. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute, and he goes so far as to say that his appeal "is not concerned with disputes of fact." We disagree.
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).
Assuming arguendo, that Complainant established a prima facie case of discrimination on the bases of reprisal and race, he has not demonstrated that the Agency's legitimate, nondiscriminatory reasons are pretext for discrimination. The Agency explains that D1 directed S2 and S3 to take the actions in Claims 1, 2 and 3 to prevent further discrimination, ensure additional oversight over the Paint Room, correct Complainant's conduct, and based on the nature of C1's past statements, ensure Complainant's safety. Disregarding the allegedly false statements by P1 and P2, we still find the EEO and ER reports of Complainant's conduct and the tense atmosphere within the Paint Room, as well as the IG report indicating Complainant was downloading images of nude women onto the Agency's network, to support the Agency's reasoning, particularly because Complainant was making the sexist, racist statements from a supervisory role. The Agency further explains that D1 decided to adjusted Complainant's job instead of P1 and P2's position for "practical" reasons: P1 and P2, as painters "do not have an office and can be in any number of locations, at any time, throughout the day [whereas] Complainant was a Work Leader. Although he assigned work to the Painters at the beginning of the shift, and checked their work during the workday, his duties were primarily located in an office. They included planning and scheduling, computer based tasks, ordering materials and supplies, and coordinating with supervisors and others within the building." We find these sufficient legitimate nondiscriminatory reasons for Claims 1, 2 and 3.
On appeal, Complainant appears to raise a pretext argument by attributing the actions in Claims 1, 2, and 3 as an "overzealous reaction" by Management "eager to show itself responsive to minority claims of discrimination and displeased by [Complainant's] own claims of [discrimination]." It is well established that the Agency, as the employer, has broad discretion to determine how best to manage its operations and may make decisions, including personnel decisions, on any basis except a basis that is unlawful under the discrimination statutes. See Burdine; Furnco. The reasonableness of the employer's decision may, of course, be probative of whether it is pretext. The trier of fact must understand that the focus is to be on the employer's motivation, not its business judgment. Grappone v. Dep't of the Navy, EEOC No. 01A10667 (Sept. 7, 2001) request for reconsideration denied, EEOC Request No. 05A20020 (Dec. 28, 2002) citing Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979). While we understand how Management's physical and temporal separation of Complainant from his subordinates, as described in Claims 1, 2 and 3, could impede his ability to perform the functions of his position, we do not find this inconvenience so unreasonable as to be evidence of pretext. Therefore, Complainant has failed to sufficiently show that the agency's action was unreasonable in terms of business judgment, and thus, without more, complainant's argument that the agency's articulated reason was a pretext for discrimination is unproven.
Upon careful review of the AJ's decision and the evidence of record, as well as the parties' arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged.
Complainant's Motion in Limine
According to Complainant, the issue before the Commission on appeal is "what course of action its AJs should take when witnesses who are former Agency employees cooperate freely with the Agency in discovery and litigation, but not with the Complainant." By Complainant's account, from 2013 through 2014, the time frame where the Agency delayed forwarding the ROI to the Commission, S2, S3, D1, P1 and P2, as well as the Special Assistant to the Chief Human Capital Officer, who Complainant identified as a key witness, all retired or left the Agency's employ. Complainant contends that these retired witnesses all cooperated when the Agency contacted them for information during the discovery phase for the instant complaint, yet these former employees would not cooperate when Complainant attempted arrange depositions with them.
In his Motion in Limine, Complainant asked that the AJ either instruct the Agency to ask that these witnesses cooperate, or sanction the Agency. The AJ denied Complainant's Motion, explaining, that "no sanction is appropriate because the Agency has no control over the actions of a retired employee." Citing Wieczarek v. United States Postal Serv., EEOC Appeal No. 01273220 (Sept. 14, 1999).
Complainant clarifies on appeal that he was not suggesting that the witnesses be "compelled" to testify or requesting that the Agency pressure the witnesses to testify, but rather, Complainant asked the Agency "request that they similarly cooperate with the Complainant in discovery." The Agency declined, and filed its Motion for Summary Judgment, "relying heavily" on witness statements obtained during discovery.
We find Complainant's inquiry irrelevant to his case because he has not demonstrated that a question of material fact exists to pursue this complaint further, nor has he specified what information he expected to obtain from these witnesses that would have saved his case from a finding of summary judgment.
CONCLUSION
Accordingly, the Agency's final order adopting the AJ's decision is AFFIRMED.
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
March 13, 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 AJ's Sanctions Order (Nov. 13, 2014) (finding the Agency violated Commission regulations and caused an undue delay in the hearing process when it withheld the ROI from Complainant for over a year; sanctions included Complainant attorney fees and costs for the motions, and costs associated with deposing witnesses.)
3 Complainant's Motion in Limine (Feb. 20, 2015) (arguing for further sanctions, or in the alternative, that the Agency's request for a decision without a hearing could not be granted because the Agency would not facilitate Complainant's access to its witnesses after the witnesses did not cooperate when Complainant attempted to contact them, creating an "imbalance" that prejudiced Complainant, and effectively "mooting" the sanctions by preventing Complainant from taking witness depositions.)
4 Complainant's prior first level supervisor was the Paint Shop Foreman ("PF") (African-American), who retired in September 2011 and had not been replaced, so, according to Complainant, he was essentially doing the work of a Foreman.
5 Complainant contends that he did not determine the bonuses, P1 and P2 spent less time than the other Painters on the bookstore renovation, and he assigned jobs based on skill set, not race.
6 Complainant states that he worked and was paid during the 16-day "paper" suspension.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
7
0120162347