0120140300
04-27-2016
Joel M.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Joel M.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120140300
Hearing No. 480-2012-00530X
Agency No. 200P06912011104546
DECISION
On October 15, 2013, Complainant filed an appeal from the Agency's September 17, 2013, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are: (1) whether Equal Employment Opportunity Commission Administrative Judge's (AJ's) issuance of a decision without a hearing was appropriate; and (2) whether Complainant established that the Agency discriminated against him on the bases of national origin (Lebanese), disability (cold sores), and reprisal for prior protected EEO activity when:
1. On August 18, 2011, he was forced to take sick leave;
2. On August 23, 2011, he was denied overtime; and
3. On August 23, 2011, he was denied eight hours of Ground, Defense and Recover (GDR) training.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Police Officer at the Agency's Medical Center in Los Angeles, California. On August 11, 2011, Complainant and the members of his shift were scheduled for GDR training. This date was an off-duty day for the members of this shift and they received overtime pay for attending the training. Complainant did not attend the August 11, 2011, GDR training and the Police Office Instructor (POI) scheduled Complainant to attend a GDR training on August 18, 2011. When Complainant arrived at work on August 18, 2011, he informed his supervisor (S1) that he would be unable to participate in the GDR training due to a cold sore. When Complainant called POI to tell him that he could not attend the GDR training, POI responded that Complainant would also be unable to perform his regular duties because of his cold sore. Complainant did not attend the training and took sick leave for that day. Complainant attended the GDR training on August 23, 2011, which was one of his regular on-duty days. The training lasted approximately three and one-half to four hours and was attended by four additional police officers.
On November 2, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Lebanese), disability (cold sores), and reprisal (an EEO complaint filed in November 2010, and two EEO complaints filed in 2011) when:
4. On August 18, 2011, he was forced to take sick leave;
5. On August 23, 2011, he was denied overtime; and
6. On August 23, 2011, he was denied eight hours of GDR training.
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 AJ. Complainant timely requested a hearing. When the Complainant did not object, the AJ assigned to the case granted the Agency's August 23, 2012, motion for a decision without a hearing and issued a decision without a hearing on August 29, 2013. After reviewing the record, the AJ found that there were no material facts in genuine dispute and that there were no genuine credibility issues. As such, a decision without a hearing was appropriate.
In regards to Complainant's status as an individual with a disability, the AJ noted that Complainant stated that his cold sores did not limit his daily life activities and concluded that Complainant did not establish that he was an individual with a disability based on having an actual disability. However, the AJ noted that POI was aware of Complainant's cold sore condition and, in viewing the evidence in the light most favorable to Complainant, decided that Complainant was regarded as an individual with a disability for the purposes of this decision.
The AJ then found that Complainant did not establish a prima facie case of discrimination based on national origin or disability because he did not identify any non-Lebanese or non-disabled similarly-situated employees who were treated more favorably. Specifically, Complainant did not identify any Police Officer who:
1. declined to attend a scheduled GDR training, was then allowed to work the day of a rescheduled training, and not required to use leave;
2. missed his scheduled GDR training for a personal reason and thereafter was scheduled for GDR training on an off-duty day, entitling him to overtime pay; or
3. received more hours for the GDR training.
The AJ also found Complainant did not establish a prima facie case of retaliation because neither S1, nor the trainer responsible for the shortened GDR training, were aware of Complainant's prior EEO activity. However, the AJ assumed, arguendo, that Complainant had established a prima facie case of retaliation, but found that Complainant did not show evidence that the Agency's proffered reasons for requiring him to use leave; rescheduling him for the GDR training on a non-overtime day were pretext for discrimination. Accordingly, the AJ found that Agency did not discriminate against Complainant on the bases of national origin, disability and reprisal for prior EEO activity, as alleged.
On September 17, 2013, the Agency issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination. Complainant then filed the instant appeal but did not provide any arguments in support of his appeal. The Agency responded to the appeal by requesting that the Commission affirm its final order.
ANALYSIS AND FINDINGS
Standard of Review
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both 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 Chap. 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.
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. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
In this case, we agree with the AJ that that there were no material facts in genuine dispute and no genuine credibility issues. Accordingly, we find that a decision without a hearing was appropriate.
Disparate Treatment
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he must first 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Assuming, arguendo, that Complainant had established a prima facie case of discrimination based on national origin, disability (regarded as an individual with a disability) and reprisal for prior EEO activity, we find that the Agency articulated legitimate, non-discriminatory reasons for its actions. On August 18, 20111, when Complainant informed POI that he was unable to attend the GDR training due to his cold sore, POI explained that Complainant would also be prevented from carrying out his normal duties as a police officer. Since Complainant was concerned about potential bodily contact during the training, POI stated that he would be unable to interact with the public since the possibility for getting into physical altercations could occur at any time. POI also stated that he did not "force" Complainant to take sick leave but that Complainant made the choice to take leave, instead of attending the GDR training that day.
In regards to Complainant's claims that he was discriminated against when he was denied overtime on August 23, 2011, POI stated that scheduling was based upon availability and it may or may not result in overtime for an attendee. POI stated that he looked for a class that could accommodate Complainant, which was on a regular duty day for him. The record also shows that Complainant's managers were recently directed to limit overtime for training, due to budget constraints.
Additionally, the Agency stated that Complainant was not discriminated against in regards to the number of hours provided for the GDR training. The record shows that the other four officers who also attended the August 23, 2011, training with Complainant received the same number of hours for the training. POI stated that the training is scheduled for five hours, not eight hours. Additionally, POI stated that since Complainant's training class was small, they were able to cover all the material faster than in classes with more attendees. We also note that Complainant stated that he did not believe that he was being discriminated against in regards to the number of hours received for the GDR training, but attributed that decision to "mismanagement."
POI and S1 denied discriminating against Complainant based on national origin, disability or reprisal for prior EEO activity. Additionally, Complainant has not provided any evidence showing that the Agency's proffered legitimate, non-discriminatory reasons were pretext for discrimination. Further, the record shows that during August and September 2011, there were eight other police officers who were unable to take the GDR training with their units and were rescheduled for make-up sessions. All of these police officers attended GDR training on their on-duty days and they did not receive overtime pay.
The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997). Accordingly, we find that Complainant did not establish that the Agency's decision to "force" him to take overtime; schedule his GDR training for a non-overtime date; or provide less time for the GDR training were based on national origin, disability or in reprisal for prior EEO activity.
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 adopting the AJ's decision without a hearing finding no discrimination based on national origin, disability and reprisal for prior EEO activity.
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
_4/27/16_________________
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
0120140300
7
0120140300