0120152706
12-05-2017
Junior T.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Junior T.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120152706
Hearing No. 510-2014-00061X
Agency No. 200I-0733-2013100698
DECISION
On August 14, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's July 10, 2015, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented before this Commission are: (1) whether an Equal Employment Opportunity Commission Administrative Judge's (AJ) issuance of a decision without a hearing was proper; and (2) whether Complainant established he was treated differently or harassed based on disability (back) and reprisal.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Program Support Assistant at the Agency's Consolidated Patient Account Center located in Orlando, Florida. On March 4, 2013, he filed a formal complaint in which he alleged discrimination and harassment based on disability (back) and reprisal when:
1. On October 19, 2012, he was denied leave under the Family Medical Leave Act (FMLA);
2. On October 31, 2012, he was charged absent without leave (AWOL) for allegedly not informing his supervisor he would be taking FMLA leave;
3. On November 15, 2012; he was denied FMLA leave to attend a medical appointment;
4. On November 19, 2012, he was placed on administrative leave for arguing with his supervisor (S1);
5. On January 24, 2012, he was suspending for five days for arguing with S1; and
6. On January 25, 2012, he was told that he should not be in the IV Department because he was stopping other employees from working.
See Complainant's March 4, 2013, Formal Complaint at 1.
The Agency accepted the complaint for investigation. After the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of right to request a hearing before an Administrative Judge. Complainant timely requested a hearing. Therefore, his complaint was forwarded to the appropriate EEOC District Office and assigned to the AJ. On March 11, 2014, the Agency filed a Summary Judgment Motion, which the AJ granted and issued a decision without a hearing on May 25, 2015, finding that Complainant did not establish discrimination as alleged. On July 10, 2015, the Agency issued a final order adopting in full the AJ's decision. Complainant thereafter filed this appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant essentially puts forth the same arguments made during the investigation and hearing stage of this matter. Complainant also contends that the reason he had to ask for FMLA leave was because S1 was denying his sick leave requests.2 Complainant also appears to indicate that he wants to file a civil action and to have an attorney appointed because he cannot afford one. The Agency did not file contentions on appeal.
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) (if an AJ'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 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").
ANALYSIS AND FINDINGS
Decision without a Hearing
Initially we consider whether it was appropriate for the AJ to have issued a decision without a hearing on the record in this case. 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.
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 AJ 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 AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
Upon review, we find that the record was adequately developed, that no genuine issues of material fact remain, and that no fact-finding is necessary. We also find Complainant was given ample notice, a comprehensive statement of the undisputed facts, and the opportunity to respond. See Agency's March 11, 2014 Motion for Summary Judgement (providing Complainant a comprehensive statement of undisputed facts); see also AJ's March 19, 2014 Scheduling Order, Prehearing Conference; AJ's December 4, 2013 Acknowledgement Order (both giving Complainant ample notice and an opportunity to respond). Despite the AJ's efforts, Complainant chose not to respond to the Agency's Motion for Summary Judgment. Thus, we find that the AJ's issuance of a decision without a hearing was proper.
Disparate Treatment
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a disparate treatment case is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). Under this tripartite process, Complainant must first establish prima facie cases 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. Id. at 802. Second, the Agency must articulate legitimate, nondiscriminatory reasons for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). And third, if the Agency is successful, then Complainant must prove by preponderant evidence that the legitimate reason(s) proffered by the Agency was a pretext for discrimination. Id. at 256. We presume, without so finding, Complainant has established prima facie cases of disability and reprisal discrimination.
We now look to see whether the Agency provided legitimate, nondiscriminatory reasons for the actions Complainant allegations constitute disparate treatment based on his claimed protected classes. The AJ found that Complainant was denied FMLA leave on October 19, 2012 because it exceeded the number of episodes allowed under the amount authorized (i.e., two to three times every two to three weeks lasting two to three days per episode). Here, the AJ noted that Complainant had already used FMLA leave on October 5, 2012, October 17, 2012, and was granted FMLA leave regarding his morning request for 15 minutes the morning of October 19, 2012, but he was denied FMLA leave for two hours the afternoon of October 19, 2012 because those two hours exceed the authorized amount allowable per episode under FMLA.
The AJ further found that Complainant was charged AWOL on October 31, 2012, because after putting in a leave request without having notified a supervisor, he improperly left work before anyone had a chance to grant or deny the request.
The AJ found that Complainant's allegations regarding being denied FMLA leave to attend a doctor's appointment on November 15, 2012, being placed on administrative leave on November 19, 2012, and being suspended for five days on January 24, 2013, are all related. Regarding these allegations, the AJ found that Complainant's FMLA leave request was denied because it was requested for November 23, 2012, the day after Thanksgiving, and leave for that day had to have been requested by September/October so that the Agency could ensure that its operations were properly staffed.3 The AJ further found that, after the Agency's denial, Complainant and his supervisors met and an argument ensued. Due to Complainant's conduct during the argument, Complainant was thereafter placed on administrative leave. The AJ noted that a police report clearly indicates that Complainant was out of control, disrespectful, and insubordinate. See November 15, 2012 Police Report, at 1-11. The AJ then noted the Agency's statement that Complainant was suspended for five days on January 24, 2015, because of the conduct he exhibited during the November 15, 2015 altercation he had with his supervisors.
As to the final allegation, the AJ found that Complainant was told not to visit the IV Department during his breaks on January 25, 2013, because he was keeping other employees from working. According to Complainant's first line manager at the time, the Administrative Services Supervisor (S1-2), he was informed by the IV Manager that Complainant was visiting employees in her area. The AJ further found that upon learning this, S1-2 told Complainant to take his breaks in the designated break area to not disturb any work flow. S1-2's statement was corroborated by the IV Manager. See ROI at 370 (statement from the IV Managing indicating that she did indeed inform S1-2 that Complainant that he was disrupting employees in her area who were not on break at the time).
Regarding each of Complainant's six allegations, the AJ found that the Agency provided legitimate nondiscriminatory reasons why it took the actions Complainant alleges to be discriminatory. The Commission agrees with the AJ's findings.
In the final step of a disparate treatment analysis, our inquiry moves to consideration of whether Complainant carried her burden to demonstrate pretext. To prevail on his claim of discrimination, Complainant must show, through probative and preponderant evidence, that the Agency's articulated reason(s) was a pretext for discrimination. Complainant can do this by showing that the Agency's explanation is unworthy of credence and that its actions were influenced by legally impermissible criteria, i.e., animus toward based on disability and reprisal.
Ultimately, the AJ found that Complainant presented no evidence, other than his own explanations, beliefs and assertions, to demonstrate pretext. However, such statements and speculation, without corresponding probative evidence, do not suffice to meet his burden. See Nagle v. Dep't of the Treas., EEOC Appeal No. 0120092440 (Feb. 4, 2011). We therefore agree with the AJ and find that Complainant did not meet his pretext burden.
Harassment
Further, under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of a hostile work environment must also fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of harassment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency as set forth above were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sep. 21, 2000).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ's issuance of a decision without a hearing was proper. We further find that Complainant did not establish he was treated differently or harassed based on disability and reprisal. Accordingly, the Agency's final order is hereby AFFIRMED.4
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
__12/5/17________________
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 On appeal, Complainant indicated that he forgot to mention the sick leave denials in his complaint. See Complainant's [Undated] Appeal Brief, at 1-2. If Complainant believes he was discriminated against regarding S1's alleged denials of his sick leave requests, he should contact an EEO Counselor on these matters.
3 There is no evidence in the file the request was related to Complainant's presumed disability.
4 Complainant is advised that the Commission does not appoint attorneys and we are not involved in the filing of civil actions in Federal District court. Should he decide to pursue that option, he should read paragraphs S and Z below.
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