0120162683
01-26-2018
Herb E,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Herb E,1
Complainant,
v.
Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120162683
Hearing No. 570-2014-00330X
Agency No. 123301103323
DECISION
On August 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 July 29, 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 Historian at the Agency's Joint POW/MIA Accounting Command facility in Joint Base Pearl Harbor-Hickam, Hawaii.
On December 21, 2012, 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, on August 1, 2012 Complainant was terminated from his Oak Ridge Institute for Science and Education (ORISE) Fellowship Contract.
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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing.
Over Complainant's objections, the AJ assigned to the case granted the Agency's April 21, 2015, motion for a decision without a hearing and issued a decision by summary judgement in favor of the Agency on June 15, 2016. Complainant alleged that members of upper management (RMOs 1, 2 & 3) retaliated against him because of his support of his own supervisor's EEO complaint and because Complainant reported what he believed to be inappropriate questions posed by RMO1 during a hiring interview. The AJ found that Complainant failed to establish a prima facie case because he failed to show he engaged in protected activity, that Agency officials were aware of his protected activity, that he incurred an adverse action, or that there is a nexus between the Agency's action and any protected activity.
The Agency issued a final order adopting the AJ's findings. The instant appeal followed.
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.
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. Here, Complainant has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute.
Where, as here, Complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.
A complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in 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).
The AJ found that Complainant failed to establish a prima facie case because he failed to show: he engaged in protected activity; that the Agency was aware of the protected activity; that he was subjected to adverse treatment; and that a nexus exists between the protected activity and the adverse treatment. Because we find Complainant failed to show he was subjected to adverse treatment, we need not address prongs 1, 2, and 4 of the prima facie test. The AJ noted that when his supervisor called Complainant on August 1, 2012, to notify him of the Agency's decision to terminate his fellowship, Complainant responded that he had already resigned on July 9, 2012, and subsequently sent an email to RMO2 and the entire facility attaching his July 9 resignation memorandum. Because Complainant had already resigned, the AJ found, he was not subjected to an adverse action when the Agency subsequently terminated his fellowship. We agree.
The AJ noted that despite his July 9 memo, Complainant maintained that his supervisor had convinced him not to resign until a decision could be made regarding his telework request, and that during this period Complainant was on approved unpaid leave caring for his wife in Texas. The AJ nevertheless found that Complainant's "actions were consistent with his July 9, 2012 resignation," noting that his supervisor had written a memo on August 1, stating that upon being told of the termination of his fellowship, Complainant reminded the supervisor that he had resigned on July 9. According to the memo, Complainant asked the supervisor if she remembered his resignation and she responded, "I did recall he had reported he was going to resign (he was packing up his car). He requested I inform [RMO2] that he had resigned on the 9th of July." Report of Investigation (ROI), p. 58. The AJ further noted that Complainant had removed all of his personal memorabilia from the ceremonial display case, and cleared out his desk of all work materials, and finally, that Complainant testified that between July 13 and 18, 2012, prior to his departure from Hawaii, he had advised his landlord that he would not be renewing his lease for August 2012.
A review of the record shows that, upon hearing of the termination of his fellowship, Complainant did indeed send an office-wide email to which he attached his July 9 memo with the subject matter heading "Resignation" announcing his "immediate resignation" on July 9, 2012. See ROI, Exhibit F-1, j. The sending of such an email to the whole department reinforces the AJ's finding that Complainant resigned on July 9. We note that Complainant has not presented evidence that he worked or received any pay after July 9, 2012. We therefore conclude that the AJ's finding that Complainant resigned prior to his termination, and therefore did not incur an adverse action, to be supported by the record and we discern no basis to disturb the AJ's finding in this regard.
To the extent Complainant claims his resignation was coerced by the Agency's actions and that he was, in effect, constructively discharged, we note that to establish a constructive discharge, Complainant would have to show that the Agency made working conditions so difficult that any reasonable person in his position would have felt compelled to quit. Clemente M. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120160661 (March 11, 2016), citing Caron-Coleman v. Dept. of Defense, EEOC Appeal No. 07A00003 (Apr. 17, 2002). The Commission has established three elements which a complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in the complainant's position would have found the working conditions intolerable; (2) the conduct that constituted discrimination against the complainant created the intolerable working conditions; and (3) the complainant's involuntary resignation resulted from the intolerable working conditions. Clemente M., supra, citing Walch v. Dept. of Justice, EEOC Request No. 05940688 (Apr. 13, 1995).
Following a review of the record, we find that Complainant cannot establish a claim of constructive discharge. Complainant describes arguments and strong disagreements he had with RMO1 but has not described working conditions that come anywhere close to being intolerable. We therefore find he has not established a claim of constructive discharge.
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 implementing the AJ's finding that Complainant did not establish that discrimination occurred.
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
January 26, 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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