Isaac L. Hykes, Complainant,v.Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionFeb 2, 2009
0120083497 (E.E.O.C. Feb. 2, 2009)

0120083497

02-02-2009

Isaac L. Hykes, Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.


Isaac L. Hykes,

Complainant,

v.

Henry M. Paulson, Jr.,

Secretary,

Department of the Treasury,

Agency.

Appeal No. 0120083497

Hearing Nos. 250-2006-0013X & 490-2007-0031X

Agency Nos. TD-05-2314 & TD-06-2044

DECISION

On August 6, 2008, complainant filed an appeal from the agency's final

order, dated July 2, 2008, 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 AFFIRMS the agency's final order.

BACKGROUND

During the relevant time, complainant worked as a GS-4 clerk, in the

Wage and Investment Service Center of the Internal Revenue Service, in

Memphis, Tennessee. Believing that he was treated differently than his

female co-workers, and in reprisal for prior EEO activity, complainant

contacted the EEO office. Informal efforts to resolve complainant's

concerns were unsuccessful. Subsequently, complainant filed a formal

complaint alleging:

(1) on February 11, 2005, he was given his annual appraisal for the

period January 1, 2004 to December 31, 2004, with an overall average of

CJE rating of 3.8; and

(2) on September 19, 2005, and ongoing the Complainant believes that

his manager assigned him to perform an unfair amount of work, more

complicated work and given less time to complete those assignments;

(3) on an ongoing basis females in the work group are allowed an

additional 30 minutes after their arrival at work before they begin

performing the assigned task of inputting batches of work on the computer

system;

(4) on September 21, 2005, he was issued a counseling memorandum for

insubordination and;

(5) on or about February 7, 2006, the Complainant received his annual

appraisal for fiscal year 2005, which an overall rating of a 4.0 which

he believes does not accurately rate his overall performance and did

not include his self-assessment.

(6) The complainant contends that on 17 specified days between April 11,

2005 and June 14, 2005, he was not allowed to batch work as similarly

situated female co-workers.

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 AJ assigned to the case determined sua sponte

that the complaint did not warrant a hearing and over the complainant's

objections, issued a decision without a hearing on June 23, 2008.

The AJ determined that complainant did not establish he was subjected

to unlawful discrimination.

With respect to complainant's claims of sex discrimination, the AJ

found that complainant established a prima facie case. As noted above,

complainant asserted that his female co-workers were treated more

favorably in terms of work assignments and performance evaluations.

The AJ determined that the female employees identified by complainant

were similarly situated, sharing the same supervisor and job functions.

The only difference, identified by the AJ was that complainant did

not work during the same time periods, in an effort to accommodate

complainant's college class schedule. However, the AJ concluded

that the agency rebutted any initial interference of discrimination

created by complainant's prima facie case by proffering legitimate,

non-discriminatory reasons for its actions.

As to complainant's efforts to establish pretext, the AJ was not

convinced. Although the complainant submitted hundreds of pages of

documents, the AJ noted that he "made no attempt to explain how any of

the documents he submitted prove his contentions. For example, with

respect to his evaluation, complainant provided a nine-page affidavit

which identifies each critical job element and simply the assertion

that he should have received an "exceeds" rating for each, without any

supporting information. Additionally, the AJ observed that complainant

repeatedly alleged that the agency's actions were due to his status

as a union steward. This assertion, stated the AJ, "tends to dispute

[complainant's] allegation of sex and/or retaliation [for prior EEO

activity]."

Regarding the basis of reprisal, the AJ noted that complainant established

the first two elements of a prima facie case. The record showed that

complainant engaged in protected activity and that his supervisors

were aware of this activity. However, the AJ did not find any evidence

showing that complainant was discriminated against in reprisal for his

EEO activity. In fact, the AJ observed that the record failed to show

that complainant was in any way treated differently than his co-workers,

except for the fact that his request for a different schedule was granted

so he could attend college. Moreover, the record did not indicate

there was any temporal proximity between the prior activity and the

purportedly discriminatory actions since complainant's actions occurred

a year earlier. Lastly, with respect to complainant's contentions that

he was retaliated against because of his union activities, the AJ stated

that such activity is not protected under Title VII.

In conclusion, the AJ determined that complainant failed to establish

any genuine and material issues fact which required a hearing. Further,

complainant did not satisfy his burden of proving he was subjected to

unlawful discrimination due to his sex or in retaliation for his prior

EEO activity. Lastly, the AJ expressed his belief that the case should

be dismissed because "complainant abused his discretion in submitting

voluminous and repetitive material serving no useful purpose other than

to waste the time of the agency and the AJ. . . ."

On July 2, 2008, the agency issued a final order fully implementing the

AJ's finding of discrimination. Complainant filed the instant appeal.

CONTENTIONS ON APPEAL

On appeal, complainant provides over a hundred pages of documents,

including depositions from agency officials, an affidavit from a

co-worker, several "Employee Career Learning Plans", and a copy of the

agency's MD-715 report.

In response, the agency reiterates its belief that the AJ correctly issued

a summary judgment decision finding no discrimination. Specifically,

the agency argues that complainant was given the opportunity to provide

additional evidence and arguments, in response to the AJ's order, and

his "voluminous submission" simply "contained self-drawn conclusions and

broad statements, with no specific arguments." The agency contends that

record was sufficiently developed, there was no conflicting evidence to

weigh, and the AJ considered the evidence in the light most favorable

to the complainant.

ANALYSIS AND FINDINGS

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").

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.

The Commission finds that the AJ properly issued a decision without

a hearing. Based on a review of the record, we agree that no genuine

issue of material fact exists.

To prevail in a disparate treatment claim such as this, complainant must

satisfy the three-part evidentiary scheme fashioned by the Supreme Court

in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant

must initially establish a prima facie case by demonstrating that he or

she was subjected to an adverse employment action under circumstances

that would support an inference of discrimination. Furnco Construction

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,

411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate

a legitimate, nondiscriminatory reason for its actions. Texas Department

of Community 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, 120 S.Ct. 2097 (2000); St. Mary's Honor

Center v. Hicks, 509 U.S. 502, 519 (1993).

Based on a review of the entire record, including the AJ's lengthy

decision, we find that complainant has not established that he suffered

unlawful discrimination. It is evident from the detailed references

to many of complainant's documents, that the AJ thoroughly reviewed

the record. It is difficult to ascertain that complainant was subjected

to any disparate treatment at all, except for the modification to his

schedule in response to his request, let alone unfavorably treatment

based on his race or prior EEO activity. Therefore, we find that the

AJ's finding of no discrimination was proper.

CONCLUSION

Accordingly, the agency's decision is hereby AFFIRMED.

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 (S0408)

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 (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

February 2, 2009

__________________

Date

2

0120083497

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

6

0120083497