0120140833
03-24-2016
Harley S.,1 Complainant, v. Sylvia Mathews Burwell, Secretary, Department of Health and Human Services, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Harley S.,1
Complainant,
v.
Sylvia Mathews Burwell,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 0120140833
Hearing No. 531-2012-00250X
Agency No. HHSOS00712011
DECISION
On December 20, 2013, Complainant filed an appeal from the Agency's September 24, 2013, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The appeal is accepted it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order implementing the EEOC Administrative Judge's (AJ's) decision.
ISSUES PRESENTED
Whether the AJ properly issued a decision without a hearing finding that Complainant failed to establish that he was discriminated against on the bases of sex, disability, and reprisal for prior EEO activity when he was subjected to harassment and a hostile work environment when: (1) in April 2011, the Agency neglected to train him properly; (2) on April 27, 2011, the Agency falsely accused Complainant of sexual assault in an attempt to remove him from his supervisory position; (3) in April 2011, the Agency placed a camera in Complainant's work area to record his activities; (4) on June 30, 2011, the Agency placed Complainant on administrative leave for allegedly "increasingly volatile conduct"; and (5) on August 24, 2011, the Agency terminated Complainant.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Lead Customer Service Representative, GS-07, at the Agency's Supply Service Center in Perry Point, Maryland. The following facts were presented as undisputed in the AJ's decision.
The Agency hired Complainant for a Lead Customer Service Representative on a one-year probationary period beginning February 27, 2011. While in this position, Complainant had a number of responsibilities including, but not limited to: managing the workflow of the Customer Service Representatives; answering phone calls; entering and ordering quotes in the inventory management system; creating accounts for new customers; processing returns and discrepancies; billing credit cards; releasing non-stock and controlled drugs; and kept up with stock commitment.
Training
Complainant contends as part of his discrimination claim that his co-workers failed to train him properly. Despite Complainant's assertions, the AJ found that undisputable evidence established that, in April 2011, Complainant received on the job training, like all Customer Service Representatives (CSRs). Complainant was provided with a Power Point presentation, entitled, "Customer Service Overview" which described the duties assigned to the Complainant. Complainant's trainers testified that although he was advised to take notes during training, he refused to do so. At a meeting on April 28, 2011 meeting, Complainant's first level supervisor instructed Complainant's co-workers to make every effort to sufficiently train Complainant and to document the training.
Falsely Accused of Sexual Assault
On April 27, 2011 one of the CSRs accused Complainant of sexual harassment, and alleged that he had subjected her to a hostile work environment. The Office Director advised the CSR and Complainant that the allegations were insufficient to constitute sexual harassment. No formal investigation of these allegations was conducted, however, a meeting was held on April 28, 2011 to discuss the details of the allegation.
Placement of Camera
Within days of the April 28, 2011 meeting, the Agency's contract specialist installed security cameras in the Customer Service and Procurement Divisions at the Supply Service Center. Concerned that the cameras had been installed near his office, Complainant went to his Second Level Supervisor (Office Director) to inquire about the specific placement of the cameras. Complainant was advised that security cameras were installed for safety and security reasons, and that he did not pick the location of the cameras and allowed the specialist to pick the best area for the cameras.
Administrative Leave & Termination
On June 30, 2011, Complainant's Second Level Supervisor was notified of an incident that occurred involving Complainant and two other employees. An argument ensued when Complainant asked one of his team members via email to complete an assignment, and she refused and began screaming at him. It appears the employee refused to complete the assignment to do filing because Complainant refused to include himself in the rotation for filing. Several employees reported that Complainant initiated the loud talking once the employee refused the assignment, and that they were upset by Complainant's conduct and concerned for their safety. During the incident, one employee reported to Complainant's Second Level Supervisor that she would not go back to the office until the incident was over, and that she felt threatened and was afraid to be upstairs with Complainant.
On June 30, 2011 Complainant was placed on paid administrative leave pending an investigation into the incident. Six employees, including Complainant, were asked to complete questionnaires asking for details of the event that took place on June 30, 2011. In the letter of instruction regarding his placement on administrative leave, Complainant was advised that other incidents were considered in the decision to place him on administrative leave. Complainant was advised that other employees reported that his conduct was increasingly volatile, and that he frequently raised his voice on personal calls, and argued with customers and employees.
On July 19, 2011, Complainant was advised that it would be in the best interest of the Agency to transfer him to the Quality Assurance Branch (QAB). Complainant personally refused to go and believed that the reassignment was not in his best interest professionally. Complainant wanted to be transferred to another location within PSC. On July 21, 2011, Complainant was sent a letter directing him to report to duty at the Supply Service Center on July 25, 2011. The Agency further explained that if he did not report to duty, then he would be placed on AWOL status. However, the United Parcel Service delivered the letter to the incorrect address. Complainant received the July 21, 2011 return to duty letter five or six days late because of the wrong mailing address placed on the envelope. On August 1, 2011, Complainant returned to PSC, and upon his return he was advised that he had been reassigned to QAB. Complainant refused to go to the QAB and explained he had a Return to Duty letter, referring to the July 21, 2011 letter that instructed him to return to the Supply Service Center, which he assumed incorrectly was the Supply Services Branch.
Complainant faxed a copy of the return to duty letter to the Union President in an effort to initiate a grievance process. By August 19, 2011, Complainant still failed to show up to QAB, and the Agency charged Complainant with AWOL from August 1-19, 2011. Shortly after being placed on AWOL status, the Agency started the process of terminating the Complainant. On August 24, 2011, the Agency terminated Complainant during his probationary period. The Agency sent a letter of termination to Complainant basing the termination on: (1) improper and unacceptable conduct in the workplace, focusing on the June 30, 2011 incident and previous incidents; (2) failure to report to duty; and (3) AWOL.
On August 11, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him as articulated in the statement of issues presented above.2 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. Over Complainant's objections, the AJ assigned to the case granted the Agency's September 26, 2012, motion for a decision without a hearing and issued a decision without a hearing on September 10, 2013 finding that Complainant did not establish that he was discriminated against as alleged. 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.
On appeal Complainant contends that the AJ erred when he issued a decision without a hearing finding that the Agency did not subject Complainant to discrimination as alleged. Complainant asks that the Commission grant his appeal and reverse the Agency's order implementing the AJ's decision, and remand his case for a hearing as he requested in his initial EEO complaint.
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at 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. Dep't of Def., 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).
After a review of the record, we find that there are no genuine issues of material fact or any credibility issues which required a hearing and therefore the AJ's issuance of a decision without a hearing was appropriate. The record has been adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, he was given a comprehensive statement of undisputed facts, he was given an opportunity to respond to the motion and statement of undisputed facts, and he had the opportunity to engage in discovery. Under these circumstances, we find that the AJ's decision without a hearing was appropriate.
Disparate Treatment
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII, or Rehabilitation Act case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. 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). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Reprisal
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), Complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
Assuming, arguendo, that Complainant is a qualified individual with a disability, pursuant to the Rehabilitation Act, and that he established a prima facie case of discrimination based on disability, we find that the Agency articulated legitimate, non-discriminatory reasons for its decisions to: install new security cameras (and the placement of these cameras); place Complainant on administrative leave; transfer him to the QAB department; and ultimately terminate him.3 We find that Complainant failed to demonstrate that any conduct on the part of the Agency was based on discriminatory animus.
The record reflects that the Agency investigated the June 30, 2011 incident, and as a result of the findings decided it was in the best interest of Agency operations to transfer Complainant. Complainant refused the new assignment. There is no record evidence which indicates that Complainant would be adversely affected by the reassignment. We concur with the AJ's rationale that the Agency articulated legitimate business reasons for each of the actions it took, which Complainant alleged were discriminatory. The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997). We find that no evidence of this kind exist in the instant matter.
Additionally, with respect to Complainant's allegations of reprisal, we find although Complainant has established that he engaged in prior EEO activity, he has not demonstrated that a nexus exists between the subsequent adverse action and the prior EEO activity. The record reflects that a decision was made to place Complainant on administrative leave pending investigation into the incident that occurred on July 30, 2011 in an effort to diffuse what had been described as a volatile situation initiated by Complainant. There had also been similar reports of Complainant exhibiting volatile conduct in the past. A decision was made to re-assign Complainant after the investigation, and Complainant refused the re-assignment. It was not until Complainant remained in AWOL status for a period of nineteen days, that a decision was made to terminate him. We find that the allegations Complainant asserts to establish his claim of retaliation are nothing more than personnel decisions that were well within the Agency's authority to make.
Harassment
With respect to Complainant's contention that he was subject to a hostile work environment with respect to the matters set forth in his complaint, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ properly issued a decision without a hearing finding that Complainant failed to demonstrate he was subject to discrimination as alleged; the Agency's final order adopting this decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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, P.O. Box 77960, Washington, DC 20013. 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
___3/24/16_______________
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 Commission notes that Complainant amended his initial complaint on September 8, 2011 to include his termination claim.
3 We note that in his formal complaint Complainant also alleged the Agency failed to properly train him, and that Agency management falsely accused him of sexual harassment in an effort to remove him. Both allegations were adequately addressed in the previous decision, and found to be without merit. We concur with those findings.
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