0120073300
12-18-2009
Isaac J. Smith, Complainant, v. John McHugh, Secretary, Department of the Army, Agency.
Isaac J. Smith,
Complainant,
v.
John McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120073300
Hearing No. 570-2006-00499X
Agency No. ARHQOSA05APR07848
DECISION
On July 11, 2007, complainant filed an appeal from the agency's June
11, 2007 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. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
MODIFIES the agency's final order.
ISSUES PRESENTED
1. Whether the AJ properly issued a decision without a hearing.
2. Whether there is direct evidence that complainant was subjected to
reprisal when the agency suspended him for five days.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Traffic Manager Specialist at the Surface Deployment and Distribution
Command (SDDC) in Alexandria, Virginia.
On May 31, 2005, complainant filed an EEO complaint alleging that
he was harassed and discriminated against on the bases of race
(African-American), sex (male), color (black), and in reprisal for prior
protected EEO activity under Title VII when:
1. He was verbally abused when he asked for clarification on an
assignment;
2. On April 22, 2005, his supervisor rescinded a verbal agreement to
allow him to switch his Compressed Work Schedule (CWS) days;
3. On May 3, 2005, he received a Letter of Reprimand dated April 22,
2005; and,
4. On June 13, 2005, the agency suspended him for five days effective
June 20, 2005.
In an investigative statement, complainant stated that beginning in
January 2005, he was "verbally abused" when his supervisor talked
to him loudly and called him an "imbecile" after he asked her for
assignment clarifications. Complainant further asserted that his
supervisor criticized his work and did not give him adequate guidance.
Complainant also alleged that his supervisor became upset with him on
February 15, 2005, because he arranged a video-teleconference session
instead of an audio-conference. Complainant's supervisor denied ever
calling complainant names, and claimed that complainant was the one who
harassed her.
Regarding claim 2, complainant stated that on or about Friday, April 22,
2005, he asked his Team Leader to ask his supervisor to allow him to
switch his compressed work schedule (CWS) day off from Monday to Friday.
Believing that he was approved to switch his days off, complainant did
not report to work on Friday, April 22, 2005. Complainant's supervisor
stated that she did not approve complainant to switch his days off
because he did not request her approval before assuming that he could
switch his days off.
With respect to claim 3, complainant stated that he received a reprimand
on May 3, 2005, based on false charges. The letter of reprimand stated
that complainant was reprimanded because he misrepresented information
to his supervisor regarding requested overtime to work on a project that
he was not assigned to work on; falsely claimed that he was working on
an Inspector General inquiry; engaged in discourteous behavior toward
his supervisor when he sent an email to his supervisor in which he told
her, "let's be clear," and on another occasion, told his supervisor to
"go away."
Regarding claim 4, complainant's supervisor stated that she issued the
letter of proposed suspension to complainant because his conduct toward
her became worse after she issued him the reprimand. She stated that,
for example, complainant alleged in a May 5, 2005 email that was sent
to the Chief of the Personal Property Division (Chief) and a Colonel,
who was a major "customer" on a project, that she misspent taxpayers'
money for a trip. Supervisor's Deposition, p. 97. She further stated
that complainant engaged in a series of email correspondences with her
in which he displayed discourteous, rude, and offensive behavior and
undermined her authority.
Additionally, the investigator asked the supervisor to specify what she
considered insubordinate about complainant's email. In response, the
supervisor quoted from a portion of the May 5, 2005 email to management
officials in which complainant alleged that the supervisor's conduct was
"another example of continual harassment and disparate treatment based
on reprisal." Supervisor's Deposition, p. 106. The supervisor further
stated:
I mean, I don't even know where that came from. [quoting from
complainant's email] "I feel management should be aware of
this pattern." I mean, and he also makes these allegations,
and instead of going and coming to see me, the first step is,
if you have a problem, try to work it out with your supervisor
. . . Instead, he puts these emails together and copies my
supervisor, the next supervisor, and the Director, Colonel,
in this email traffic.
Id.
Additionally, the supervisor explained why she thought complainant's
May 5, 2005 email was discourteous:
Well look at the last statement, the last paragraph. This is an example.
Now, he's writing this to me with a copy to my supervisor, his supervisor,
the next senior level up, and the Colonel, the Director of the Division,
the Directorate, again, making serious allegations about me continuously
harassing him and giving him disparate treatment and a hostile work
environment. But never once had he ever come to me and said we
have a problem. But instead, put this in writing to these other
individuals, to me and making sure that these other individuals get
copies of it.
Supervisor's Deposition, pp. 117, 118.
The Chief stated that he concurred with the supervisor's recommendation
to suspend complainant for five days based upon the letter of reprimand,
the letter of proposed suspension, and the emails that accompanied
the supervisor's letter of proposed suspension. Chief's Deposition,
p. 282.
At the conclusion of the investigation, complainant was provided 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. The agency filed a motion for summary
judgment, and on January 12, 2007, complainant filed a cross motion for
summary judgment. On January 22, 2007, the agency filed its reply to
complainant's cross motion for summary judgment, and complainant filed a
response to the agency's reply on January 29, 2007. In a decision dated
May 10, 2007, the AJ granted the agency's motion for summary judgment
and denied complainant's cross motion for summary judgment.
AJ's Decision
In the decision, the AJ concluded that complainant failed to show that
the agency engaged in actions that were severe or pervasive enough to
create a hostile work environment. The AJ further analyzed complainant's
complaint under a disparate treatment analysis and found that complainant
failed to show that any of the alleged actions occurred because of his
race, color, sex, or prior EEO activity. The agency subsequently issued
a final order adopting the AJ's finding that complainant failed to prove
that he was subjected to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant contends that the AJ erred in finding no reprisal for claim
4 because the agency cited complainant's EEO activity in its May 16,
2005 proposed suspension letter, which he maintains is direct evidence
of reprisal. Complainant further argues that the AJ erred in finding
that a May 5, 2005 email to management officials in which he alleged that
his supervisor engaged in "continual harassment and disparate treatment
based on reprisal" was not EEO oppositional activity. The agency requests
that we affirm its final order.
ANALYSIS AND FINDINGS
On appeal, complainant does not make any arguments regarding claims 1 - 3
or his claim that he was subjected to sex, race, or color discrimination.
Instead, complainant only challenges the AJ's finding that he was not
subjected to reprisal when the agency suspended him effective June 20,
2005 (claim 4). Accordingly, our review will only address complainant's
appellate argument that the AJ erred when she found no reprisal with
respect to claim 4. EEOC Management Directive 110, 9-10 (November 9,
1999).
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 EEOC Management Directive 110, 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").
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. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003).
Direct Evidence
As an initial matter, the Commission finds that the AJ erred in examining
complainant's suspension under the McDonnell Douglas tripartite analysis,
because complainant presented direct evidence of discrimination.
Direct evidence of discriminatory motive may be any written or verbal
policy or statement made by a respondent or respondent official that on
its face demonstrates a bias against a protected group and is linked to
the complained of adverse action. See Revised Enforcement Guidance on
Recent Developments in Disparate Treatment Theory, III(A) (July 14, 1992)
(Revised Enforcement Guidance). A link between the evidence of bias and
the challenged employment action can be shown if the biased statements
were made by the decision maker or one who was involved in the decision,
at or around the time the decision was made, even if the biased remarks
were not specifically related to the particular employment decision at
issue. See id., fn. 8. The United States Supreme Court has held that
where the complainant presents direct evidence of discrimination,
use of the McDonnell Douglas test is inappropriate. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973); Trans World Air Lines,
Inc. v. Thurston, 469 U.S. Ill, 121 (1985). Unless the agency can impeach
the evidence or can establish an affirmative defense, liability will be
established. Revised Enforcement Guidance, at III(B)(1).
Complainant contends that there is direct evidence of discrimination here
because the May 16, 2005 letter of proposed suspension referenced his EEO
activity as a basis for disciplining complainant. Complainant contends
that he engaged in oppositional EEO activity when he sent a May 5, 2005
email to his supervisor and other management officials in which he alleged
that his supervisor subjected him to "continual harassment and disparate
treatment based on reprisal resulting in a hostile work environment."
The record contains a copy of the May 5, 2005 email that complainant
maintains was cited as a basis for his suspension in the letter of
proposed suspension. The May 5, 2005 email was addressed to complainant's
supervisor, Chief, and Colonel and stated the following:
What is your priority that I work first the EXSUM or the Point
Paper. [sic] Based on your guidance that I not coordinate outside of
the office makes it difficult for me to get all the information you
may be looking for but do not communicate fully. Moreover, you do not
always share the information that comes to you about the 2nd ID which
I have requested which makes it difficult to perform action officer
requirements. This type of interference as well as vague guidance results
in additional confusion and lost efficiency. What specific email and
information are you referring to and what specifically would you like
to see in the point paper. Originally you said I should coordinate with
[an agency official] for this information and to use the information
[management] provided. I used [management's] text in the point paper
and you decided later not to use [agency official's] information.
This is another example of continual harassment and disparate treatment
based on reprisal resulting in a hostile work environment. I feel
management should be aware of this pattern and will keep them informed in
order to seek resolution in order to foster a more efficient, effective
and hostile free work place and improve on mission accomplishment.
Exhibit D3.
The letter of proposed suspension stated that complainant's supervisor
proposed to suspend him for five days because complainant engaged in
insubordination when he refused to follow instructions concerning improper
email traffic and continued to defy his supervisor's authority; acted
in a discourteous manner by making rude, unmannerly, and inappropriate
comments in emails sent to management and officials outside SDDC; and,
made false statements against the supervisor in email traffic both within
and outside SDDC. Exhibit F-23, pp. 365. The letter further stated that
complainant had been directed to cease sending these type of messages,
but he continued to do so, which demonstrated an intent to disrupt orderly
office functions and undermined the supervisor's authority. The letter
stated that complainant's public questioning of the supervisor's authority
constituted "a pattern of insubordinate and discourteous conduct that
has an adverse effect on efficient agency operations." Id.
Attached to the letter of proposed suspension is a list of complainant's
emails deemed "offensive" by complainant's supervisor. The list includes
several emails from complainant to his supervisor and other management
officials from May 4, 2005 to May 11, 2005, including the May 5, 2005
email in which complainant alleged to management that he was subjected
to retaliatory harassment and disparate treatment.
Further, in an investigative statement, the supervisor candidly stated
that complainant's May 5, 2005 email was insubordinate and discourteous
because, instead of first raising allegations that the supervisor
subjected him to "continual harassment and disparate treatment based on
reprisal" with her, complainant raised these allegations in an email
to the Chief, Director, and Colonel. The supervisor clearly cited
complainant's claim that he was subjected to reprisal and disparate
treatment as an example of the "insubordinate and discourteous conduct"
that motivated her to issue him a letter of proposed suspension. Thus,
we find that the supervisor's admission in her investigatory statement
is direct evidence of reprisal.
Although the Chief concurred with the supervisor's recommendation
to suspend complainant, the supervisor initiated the suspension,
and the Chief relied upon the supervisor's representations about
complainant's conduct as reflected in her proposed suspension letter
and attached emails. Hence, we determine that the Chief was the
conduit of the supervisor's retaliatory animus against complainant,
and his ultimate decision to suspend complainant was based upon the
supervisor's biased assessments of complainant's conduct. See Russell
v. McKinney Hospital Venture 235 F.3d 219, 226 (5th Cir. 2000) ("[i]f
the employee can demonstrate that others had influence or leverage over
the official decision-maker, and thus were not ordinary coworkers,
it is proper to impute their discriminatory attitudes to the formal
decision-maker"), citing Long v. Eastfield College 88 F.3d 300, 307,
308-309 (5th Cir. 1996); see also Shager v. Upjohn Company, 913 F.2d
398 (C.A.7, 1990) (holding that if review committee that was unaware of
district manager's age-based animus acted "as the conduit of [manager's]
prejudice--his cat's paw--the innocence of its members would not spare
the company from liability"); Deirdra Brown v. Department of Justice,
Appeal No. 0120045121 (December 20, 2006)(Commission held that responsible
management official did not need to have racial animus against complainant
to support finding of discrimination when official relied heavily upon
the accounts of employees who harbored racial animus against complainant
to terminate complainant).
In light of our finding that there is direct evidence of reprisal, we
further find that this matter should be reviewed under a mixed motive
analysis since management also provided non-discriminatory reasons
for suspending complainant. Specifically, management stated that
complainant was suspended because he falsely accused his supervisor of
misappropriating government funds for a trip to Hawaii in the May 5,
2005 email; displayed discourteous, rude, and offensive behavior toward
his supervisor in approximately 14 other emails; had been previously
reprimanded about similar discourteous conduct toward his supervisor;
and, failed to take responsibility for his actions.
Cases such as this, where there is evidence that discrimination was one
of multiple motivating factors for an employment action, i.e., in which
the agency acted on the bases of both lawful and unlawful reasons, are
known as "mixed motive" cases. Prior to the Civil Rights Act of 1991(CRA),
an employer could avoid liability in mixed motive cases if it could show
that it would have made the same decision even absent the unlawful factor.
See Price Waterhouse v. Hopkins, 490 U.S. 228(1989). However, the CRA
effectively overruled the part of Price Waterhouse that allowed an
employer to avoid liability in this way. The CRA added Section 703(m)
to Title VII, making it clear that a violation is established when a
complaining party demonstrates that "race, color, religion, sex, national
origin, or reprisal was a motivating factor for any employment practice,
even though other factors also motivated the practice." 42 U.S.C. �
2000e-2(m). Once a complainant demonstrates that discrimination was a
motivating factor in the agency's action, it is the agency's burden to
demonstrate by clear and convincing evidence that it would have taken the
same action even if it had not considered the discriminatory factor.
If the agency is able to make this demonstration, the complainant
is not entitled to personal relief, i.e., damages, reinstatement,
hiring, promotion, back pay, but may be entitled to declaratory relief,
injunctive relief, attorneys' fees or costs. See Walker v. Social Security
Administration, EEOC Request No. 05980504 (April 8, 1999).
In this case, we conclude that the record is inadequately developed
for a determination as to whether complainant is entitled to personal
relief because it does not reveal whether the agency would have
suspended complainant absent its retaliatory motive. Specifically, a
determination of this matter depends upon an assessment of the credibility
of responsible management officials, which requires a hearing before
an AJ.
In summary, we find that the AJ erred in issuing a decision without
a hearing in favor of the agency with respect to claim 4. We further
find that there is direct evidence of reprisal in this case and evidence
that reprisal was one of multiple motivating factors in the agency's
decision to suspend complainant. Because the record does not indicate
whether the agency would have suspended complainant absent the retaliatory
motive, a hearing is necessary to address this questions as well as the
appropriate remedies.
CONCLUSION
Accordingly, the agency's final order is MODIFIED with respect to its
adoption of the AJ's finding that the agency did not suspend complainant
in reprisal for his prior EEO activity. The Commission REMANDS this
matter for a hearing in accordance with this decision and the ORDER
below.
ORDER
The agency shall submit to the Hearings Unit of the Washington Field
Office the request for a hearing within fifteen (15) calendar days of
the date this decision becomes final. The agency is directed to submit a
copy of the complaint file to the EEOC Hearings Unit within fifteen (15)
calendar days of the date this decision becomes final. The agency shall
provide written notification to the Compliance Officer at the address set
forth below that the complaint file has been transmitted to the Hearings
Unit. Thereafter, the Administrative Judge shall issue a decision on the
issue of whether complainant is entitled to personal relief for claim 4
in accordance with 29 C.F.R. � 1614.109. The AJ's decision shall order
appropriate remedies in light of his or her ruling on claim 4. The agency
shall issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the complainant.
If the agency does not comply with the Commission's order, the complainant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,
1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled "Right to File A Civil
Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 9-18 (November 9, 1999). 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 (T0408)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an
attorney with the Court does not extend your time in which to file
a civil action. Both the request and the civil action must be filed
within the time limits as stated in the paragraph above ("Right to File
A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
______12/18/09____________
Date
2
0120073300
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
11
0120073300