0120110696
04-15-2011
Khanh B. Tang, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Federal Bureau of Investigation), Agency.
Khanh B. Tang,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
(Federal Bureau of Investigation),
Agency.
Appeal No. 0120110696
Hearing No. 550-2009-00286X
Agency No. FBI-2008-00083
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s October 28, 2010 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Special Agent in the San Francisco Division of the San Jose Resident
Agency in San Francisco, California. On December 10, 2008, Complainant
filed a formal complaint alleging that the Agency discriminated against
and subjected him to a hostile work environment on the basis of race
(Asian) when:
1. In approximately May or June 2008, Complainant asked his Assistant
Special Agent-in-Charge (ASAC) to allow him to transfer to another squad,
to which ASAC responded that Complainant would “have to earn [his]
way out,” and denied his request;
2. On or about August 21, 2008 Complainant was denied an 18-month
temporary assignment to Headquarters;
3. In approximately September 2008, Complainant received an
“unsuccessful” performance appraisal report;
4. On September 9, 2008 Complainant was placed on a performance
improvement plan (PIP); and,
5. To date, Complainant has not received a response to his December 2008
formal transfer request.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation (ROI) and notice of his
right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing. Over Complainant’s objections,
the AJ granted the Agency’s motion and issued a decision without a
hearing on September 17, 2010.
In his decision, the AJ assumed arguendo that Complainant had
established a prima facie case of race discrimination and determined
that the Agency had articulated legitimate, nondiscriminatory reasons
for its actions. Specifically, as to the denial of Complainant’s
transfer and temporary assignment requests, ASAC denied Complainant’s
requests because of his concerns regarding Complainant’s performance.
The AJ noted that numerous management officials described Complainant’s
various deficiencies including: problems with documenting his work and
investigative priorities, lack of productivity, inability to grasp the
use of various required documents, judgment issues, and deficiencies in
basic computer expertise. The AJ found that these were also the reasons
Complainant was given an “unsuccessful” performance appraisal report
and placed on a PIP.
Next, the AJ concluded that Complainant had presented no evidence
that the Agency’s reasons were pretextual. As a result, the AJ found
that the Agency had not discriminated against Complainant as alleged.
In addition, the AJ held that Complainant had not been subjected to a
discriminatory hostile work environment. The Agency subsequently issued
a final order adopting the AJ’s decision.
On appeal, Complainant contends that statements from management officials
in the record are not credible and evasive. Further, Complainant argues
that the record reveals a clear and distinct pattern of discriminatory
treatment. Accordingly, Complainant requests that the Commission reverse
the final order. The Agency requests that the Commission affirm the
final order.
ANALYSIS AND FINDINGS
The Commission must first 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).
The courts have been clear that summary judgment is not to be used
as a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768
(1st Cir. 1975). The Commission has noted that when a party submits an
affidavit and credibility is at issue, “there is a need for strident
cross-examination and summary judgment on such evidence is improper.”
Pedersen v. Dep’t of Justice, EEOC Request No. 05940339 (Feb. 24, 1995).
After a review of the record, the Commission finds that there are no
genuine issues of material fact or any credibility issues which require
a hearing and therefore the AJ’s issuance of a decision without a
hearing was appropriate. The record has been adequately developed,
Complainant was given notice of the Agency’s motion to issue a decision
without a hearing, he was given an opportunity to respond to the motion
and statement of undisputed facts, and he had the opportunity to engage
in discovery. Additionally, the Commission finds that Complainant’s
arguments on appeal are insufficient to create a dispute of material fact.
Under these circumstances, the Commission finds that the AJ’s decision
without a hearing was appropriate.
Disparate Treatment
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the
agency to articulate a legitimate, nondiscriminatory reason for its
actions. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the Agency has met its burden, Complainant bears the
ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the Agency acted on the basis of a prohibited reason.
See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, 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, 713-714 (1983); Hernandez v. Dep't
of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson
v. Dep't of Health and Human Services, EEOC Request No. 05900467 (June
8, 1990); Washington v. Dep't of the Navy, EEOC Petition No. 03900056
(May 31, 1990).
Upon review, the Commission finds that the Agency articulated legitimate,
nondiscriminatory reasons for its actions as stated above. Specifically,
Complainant’s temporary assignment/transfer requests were denied,
he was given an unsuccessful performance appraisal report, and he was
placed on a PIP because of work performance deficiencies. Because the
Agency has proffered legitimate, nondiscriminatory reasons for the alleged
discriminatory events, Complainant now bears the burden of establishing
that the Agency's stated reasons are merely a pretext for discrimination.
Shapiro v. Soc. Sec'y Admin., EEOC Request No. 05960403 (Dec. 6, 1996).
Complainant can do this directly by showing that the Agency's proffered
explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs
v. Burdine, 450 U.S. at 256.
Construing the evidence in the light most favorable to Complainant,
the Commission finds that Complainant has not shown that any of the
Agency’s actions were based on discriminatory animus or that the
reasons articulated by the Agency for its actions were mere pretext to
hide unlawful discrimination. While the record reveals that the Agency
had ongoing issues with morale and personality conflicts, there is no
evidence that these issues
were related to unlawful discrimination. Accordingly, the Commission
finds no reason to disturb the AJ’s issuance of a decision without
a hearing.
Hostile Work Environment
Finally, to the extent that Complainant is alleging that he was subjected
to a discriminatory hostile work environment, the Commission finds under
the standards set forth in Harris v. Forklift Sys., Inc., 510 U.S. 17
(1993) that Complainant's claim of hostile work environment must fail.
See Enforcement Guidance on Harris v. Forklift Sys., Inc., EEOC Notice
No. 915.002 (Mar. 8, 1994). A finding that Complainant was subjected to
a hostile work environment is precluded by the Commission's determination
that Complainant failed to establish that any of the actions taken by the
Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal
Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000).
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the Agency's final order,
because the Administrative Judge’s issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 (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 (Z0610)
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
April 15, 2011
Date
2
0120110696
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013