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