0120142747
02-26-2016
Jarvis R.,1 Complainant, v. Anthony Foxx, Secretary, Department of Transportation (Federal Highway Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jarvis R.,1
Complainant,
v.
Anthony Foxx,
Secretary,
Department of Transportation
(Federal Highway Administration),
Agency.
Appeal No. 0120142747
Hearing No. 560-2014-00050X
Agency No. 201324936FHWA04
DECISION
On July 17, 2014, Complainant filed an appeal from the Agency's June 30, 2014, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Transport Operations Team Leader at the Agency's Federal Highway Administration, Nebraska Division Office facility in Lincoln, Nebraska.
On February 5, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Asian), national origin (India), color (Brown), and age (65 years at time of incident) when:
1. Complainant was terminated from his position with the Agency, effective December 13, 2012.
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 February 25, 2014, motion for a decision without a hearing and issued a decision without a hearing on June 17, 2014. Specifically, the AJ found that the Agency articulated legitimate nondiscriminatory reasons for terminating Complainant's employment during his probationary period and that Complainant failed to establish that the Agency's articulated reasons for its action were merely a pretext to mask discrimination. 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.
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.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
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.
This established order of analysis need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that complainant established his prima facie case of discrimination. The Agency's legitimate nondiscriminatory reason for its action is provided by the December 13, 2012 Termination Notice (Notice) that stated, in part that the decision was made because of Complainant's:
Fail[ure] to make satisfactory progress in your assigned position. This includes, among other things, failure to accomplish expected tasks, failure to follow established processes developed by senior staff, and failure to exercise discretion and professional judgment in written and oral communication. . . . During this probationary period, you have demonstrated poor judgment, acted without proper authority, failed to follow instructions, and engaged in inappropriate communications. Overall, you have failed to demonstrate the knowledge, skills and abilities needed to perform successfully in your position.
Report if Investigation (ROI) Exhibit F12.
The Notice, signed by the Assistant Division Administrator (ADA: Caucasian, USA, White, born in 1959), listed seven examples of alleged "deficiencies in [Complainant's] performance and conduct." The first example consisted of an incident when, four months into his tenure, Complainant contacted the Division Administrator in another State, indicating Complainant's interest in applying for a temporary Assistant Division Administrator in that State without first discussing the matter with senior leadership. The Notice stated that "Failing to keep your senior leadership informed reflected poorly on my ability to trust your professional judgment." Id. The second example consisted of an incident during a meeting with the Nebraska Department of Roads (NDOR) "wherein you chastised a consultant for not being prepared. You demonstrated poor judgment and lack of understanding of the role of [the facility] in connection with consultants and the NDOR. Your lack of professional acumen reflected poorly on" the Agency. Id. The third example occurred when Complainant allegedly "reported the need for improved performance of [his] team members publically [instead of privately] at an office-wide meeting. . . . You failed to exercise professionalism in communication with your team members and exercised poor judgment." Id. The fourth example occurred when Complainant argued with a NDOR Deputy Director and told him that his State "did not have good contractors because they were having problems with weak pavements and Mechanically Stabilized Earth (MSE) walls falling down. You demonstrated poor judgment and lack of diplomacy. Your behavior failed to promote positive relationships between our customers, you [sic], and the Nebraska Division at-large."
Next, the Notice listed an incident when, following receipt of an email from the State Division Administrator, Complainant "spent half a day preparing a presentation on MAP-21 that you thought the consultants would want to hear, even though it was clear from the email that you were to wait for a specific assignment." Id. The sixth example stated:
You have continued to demonstrate a lack of understanding and leadership in your position. An example is the difficulty you experienced in developing Critical Job Elements (CJEs) for your staff. Despite both staff member assistance and my assistance in working directly with you to develop CJEs, you had difficulty appropriately evaluating and directing the development of the CJEs submitted by staff. Ultimately, I was required to step-in and finalize the CJEs with your staff. Later when you were asked to compare the CJEs of your team members with the Unit Plan and how they were related, you did not recognize that the version of the CJEs you developed had been revised and were no longer valid.
The final example stated:
You have demonstrated a lack of skill and have experienced difficulty over the use of the project tracking and activity tracking systems. With staff assistance, the tracking systems were populated. Staff was asked to review the projects and update them. With those updates, you should have been able to determine the number of full oversight and non-full oversight G projects. Despite individualized discussions and training sessions, you have had difficulty pulling that information from these data bases. Further, you continue to have difficulty utilizing technology, including accessing and utilizing site-manager, SharePoint, Outlook (email and calendar), etc. These are all important and required information resources for you to perform your duties.
The Agency having articulated a legitimate nondiscriminatory reason for its action, the burden shifts back to Complainant to establish, 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.
Following a review of the record, we find that Complainant has not met this burden. The AJ found that Complainant:
[D]oes not dispute the fact that he sought a temporary rotational position during his probationary period of employment, criticized a consultant's preparedness in an NDOR meeting, performed unauthorized work on a MAP-21 presentation, and had difficulty preparing acceptable CJEs with his team. Instead, Complainant argues that his actions were justified and not grounds for termination.
AJ's Decision, pp.8-9.
Similarly, on appeal, we note that Complainant does not address the Agency's articulated reasons for its action but instead charges ADA with various breaches of professional ethics and standards unrelated to Complainant's allegations of employment discrimination. See Complainant's Appeal Brief. While Complainant may disagree with the Agency's action and may believe it to have been unfair, he has not shown that the Agency was motivated by animus against Complainant's protected bases. We therefore find that the AJ's Decision is supported by substantial evidence and we discern no basis to disturb the AJ's findings. Complainant has not shown the presence of a material issue of fact and has not shown that discrimination occurred.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not met his burden of showing, by a preponderance of the evidence, that the Agency's articulated reason for its action was a pretext to mask discrimination, or otherwise shown that discrimination occurred. We therefore AFFIRM the Agency's final order.
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
February 26, 2016
__________________
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
0120142747
2
0120142747