0120120105
06-21-2013
Larry D. Carroll, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Larry D. Carroll,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120120105
Hearing No. 480-2011-00037X
Agency No. HS-TSA-00298-2010
DECISION
Complainant timely filed an appeal from the Agency's 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. The Commission accepts the appeal 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 the EEOC Administrative Judge (AJ) properly issued a decision without a hearing; and (2) whether Complainant established that the Agency's proffered explanation for its actions was pretext to mask discrimination on the basis of reprisal.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Transportation Security Manager at the Agency's McCarran International Airport in Las Vegas, Nevada. Report of Investigation (ROI), at 3. In 2009, the Supervisory Transportation Security Officer (Supervisory TSO) initiated a workplace complaint concerning an office chair soiled with blood. The Collateral Duty Safety Officer (CDSO) was assigned to conduct an internal hazardous materials (hazmat) investigation into the matter. Id. at 68. In conjunction with the investigation, the CDSO asked Complainant and other employees to provide written statements regarding their knowledge of the matter. Id. at 68-69. Complainant told the CDSO that he had already provided a written statement to the Deputy Federal Security Director (Deputy FSD) about the matter. Id. at 69. Complainant also told the CDSO that he did not wish to give statement, but would give a statement to the new FSD. Id. at 84. The Supervisory TSO also told the CDSO that he did not wish to provide a statement because he already submitted a written statement regarding this matter to the Occupational Safety and Health Administration (OSHA) Director. Id.
On September 30, 2009, the Supervisory TSO received a notice of a 14-day suspension regarding his conduct pertaining to the soiled chair matter. Id. at 72. The suspension notice indicated, among other things, that the Supervisory TSO failed to provide a written statement to the CDSO in response to the hazmat investigation. Id. at 73. In responding to the suspension, the Supervisory TSO asserted that Complainant had also failed to provide a written statement to the CDSO, but was not disciplined as he was. Id. at 75. In his October 16, 2009, grievance, the Supervisory TSO again asserted that Complainant had also failed to provide a written statement to the CDSO, and consequently had been treated more favorably. Id. at 81.
In response to the Supervisory TSO's allegations, the Agency's Assistant Chief Counsel inquired into whether Complainant had also failed to provide a written statement. Id. at 96. Other employees were questioned regarding their statements to the CDSO also. The Deputy Assistant FSD also checked into the Supervisory TSO's allegations that Complainant had been treated more favorably. In October 2009, the Deputy Assistant FSD questioned Complainant about the matter in a pre-decisional meeting. Id. at 54-55. The Deputy Assistant FSD found that Complainant had submitted a statement to the Acting FSD and offered the statement to the CDSO. Id. at 56. As a result, the Deputy Assistant FSD did not discipline Complainant. Id.
On March 10, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity1 under Title VII of the Civil Rights Act of 1964 when:
1. on October 19 and 20, 2009, management asked a Transportation Security Officer to state that Complainant refused to cooperate with an investigation; and
2. on December 12, 2009, the Agency informed him of a pre-disciplinary proposal.
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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's April 27, 2011, motion for a decision without a hearing, and issued a decision in favor of the Agency on August 15, 2011. 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.
Specifically, the AJ found that Complainant failed to establish a prima facie case of discrimination based on reprisal. The AJ noted that investigative interviews without any resulting discipline do not constitute adverse treatment reasonably likely to deter an employee from engaging in EEO conduct. The AJ also noted that Complainant failed to establish that the Deputy Assistant FSD had knowledge of his prior EEO activity when she held the pre-decisional meeting with him in October 2009. The AJ noted that Complainant received no discipline as a result of the pre-decisional meeting because it was revealed that he did nothing wrong. The AJ further found that the Agency articulated legitimate, nondiscriminatory reasons for its actions, which Complainant failed to establish were pretext for discrimination. The AJ noted that the Agency initiated an investigation in response to the Supervisory TSO's allegations that he had been treated less favorably than Complainant and other employees for refusing to provide the CDSO with a statement regarding the matter of the office chair soiled with blood.
CONTENTIONS ON APPEAL
Complainant has not filed a brief or statement 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 EEO Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, � VI.B. (Nov. 9, 1999) (both an administrative judge's decision to issue a decision without a hearing and the decision on the merits of the complaint 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 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").
ANALYSIS AND FINDINGS
AJ's issuance of a Decision without a Hearing
We 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).
After a review of the record, the Commission finds that 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, he was given a comprehensive statement of undisputed facts, and he had the opportunity to engage in discovery. In addition, the Commission finds that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in Complainant's favor, as explained below. Therefore, we find that no genuine issues of material fact or credibility exist. Under these circumstances, we find that the AJ's issuance of a decision without a hearing was appropriate
Disparate Treatment
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 was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. 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. Tx. Dep't of Cmty. 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 Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
Upon review, we find that assuming, arguendo, that Complainant established a prima facie case of discrimination based on reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Namely, an investigation was initiated in response to the Supervisory TSO's allegations that he had been treated less favorably than Complainant and other employees for refusing to provide the CDSO with a statement regarding the office chair soiled in blood matter. ROI, at 48.
The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 254. In attempt to show pretext, Complainant contends that he was being accused of being uncooperative in retaliation for his prior EEO complaint. ROI, at 40-42. Complainant contends that management wanted to retaliate against him because OSHA found that the Agency had two serious violations following the chair incident. Id. Complainant contends that management had not formally dropped the matter. Id.
Notwithstanding Complainant's contentions, we find that he has failed to establish that the Agency's legitimate, nondiscriminatory reasons were pretext for discrimination. Complainant does not dispute that he was not disciplined for not providing the CDSO with a statement. Id. at 42. There is also no dispute that the Supervisory TSO asserted that Complainant had also failed to provide a written statement to the CDSO, but was treated more favorably. However, the Deputy Assistant FSD found that Complainant had done nothing improper. Id. at 56. As such, we find that Complainant has not shown that any of the Agency's actions were based on discriminatory or retaliatory animus.
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.
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
June 21, 2013
Date
1 Complainant's prior protected activity pertains to a previous formal complaint, HS-09-TSA-000749. Therein, Complainant alleged that he was subjected to discrimination based on race and reprisal. See Larry D. Carroll v. Department of Homeland Security, EEOC Appeal No. 0120092572 (Sep. 21, 2009).
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120120105
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120105