0120100827
05-24-2011
Leonid Isakov, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Federal Bureau of Investigation), Agency.
Leonid Isakov,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
(Federal Bureau of Investigation),
Agency.
Appeal No. 0120100827
Hearing No. 530-2008-00162X
Agency No. F0706278
DECISION
On December 10, 2009, Complainant filed an appeal from the Agency's November 13, 2009 final order concerning an 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 deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
During the period at issue, Complainant worked as a probationary Intelligence Specialist at the Agency's Philadelphia Division in Philadelphia, Pennsylvania.
Complainant's employment with the Agency was contingent upon his successful completion of a six week training class at the FBI academy in Quantico, Virginia. In order to successfully complete the class, Complainant was required to pass three examinations with a 75% score or better. One of the program Coordinators (S1) stated that he observed Complainant cheating during the first two examinations. An instructor (I1) corroborated S1's observations during the first examination. The Agency arranged to have additional instructors monitor the second examination. During that examination, another instructor (I2) indicated that she also observed Complainant cheat during the second exam. A fourth instructor (I3) was present, and reported that she did not observe Complainant cheating, but rather that she observed Complainant "was very fidgety." Complainant maintains he did not cheat, explaining that he tends to rest his head on his hands, and naturally turns his head from side to side. Based on these observations, the Agency decided to dismiss Complainant from specialized training.
Upon his return to Philadelphia, the Agency asked Complainant to submit a brief essay so it could assess his writing abilities to determine whether he was suitable for the Intelligence Analyst position. After receiving Complainant's two-page writing sample, the Agency conducted an internet search and determined that Complainant had copied entire sections of his essay from online sources. Because the Agency determined that Complainant failed to properly attribute his work, the Agency terminated Complainant's employment on plagiarism grounds.
On January 12, 2007, Complainant filed the instant formal complaint alleging that the Agency discriminated against him on the basis of national origin (Russian) when:
1. The Agency subjected Complainant to hostile work environment harassment when:
a. From October 1, 2006 until November 16, 2006, he was subjected to harassing comments by students, counselors, and instructors, such as "Don't talk to Leo, he might relay sensitive information to the Russians"; and
b. On November 16, 2006, he was dismissed from specialized training based on allegations that he cheated on his examinations; and
2. March 15, 2007, Complainant was terminated from employment with the Agency during his probationary period.
With respect to Claim (1)(a), Complainant alleges he was constantly subjected to the derogatory and harassing comments. Complainant testifies the comments made him angry and bothered him; and that despite the comments, the instructors and evaluators did nothing to stop these remarks from being made.
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 June 17, 2008 motion for a decision without a hearing and issued a decision without a hearing on October 6, 2009. The AJ concluded Complainant failed to establish a prima facie claim of harassment because he was unable to demonstrate the alleged harassment was sufficiently severe or pervasive enough to perpetuate a hostile work environment. Additionally, the AJ found Complainant did not establish a prima facie claim of disparate treatment based on his national origin because he failed to demonstrate a nexus between his protected basis and the Agency's actions. Further, the AJ found Complainant failed to demonstrate as pretext the Agency's articulated legitimate, nondiscriminatory reasons.
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.
CONTENTIONS ON APPEAL
Through his attorney, Complainant argues he proved a nexus through his argument that "[t]he managers concocted a false story" that he cheated, and other Agency managers "'rubber- stamped' the 'evidence' supplied by the training class managers." Complainant also argues the Agency refused to supply physical evidence proving its allegations of cheating. With respect to the allegations of plagiarism, Complainant contends the Agency failed to retain a third page Complainant submitted with his two-page essay. On that page, Complainant cited his sources. Complainant contends he cannot "produce his own copy of the essay because he sent it from [an Agency] computer and because he is no longer employed there." Complainant further argues the Agency did not comply with the AJ's discovery orders.
Moreover, Complainant argues the AJ erred in granting summary judgment to the Agency because he presented sufficient evidence to defeat summary judgment. Specifically, the AJ was required to draw a negative inference against the Agency once they failed to produce evidence supporting their allegations of cheating, thus rendering summary disposition inappropriate. Complainant further criticizes the AJ's analysis with respect to his failure to establish a prima facie claim and his failure to demonstrate the Agency's articulated reasons were pretext for discriminatory animus.
The Agency argues Complainant's statements on appeal regarding discovery issues are without merit, and that the Agency fully documented its investigation into Complainant's alleged cheating. Further, the Agency points out that the cheating, alone, was sufficient grounds for dismissal, and that the plagiarism allegations merely compounded matters.
ANALYSIS AND FINDINGS
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, at Chapter 9, � VI.B. (November 9, 1999) (providing that an administrative judge's "decision to issue a decision without a hearing pursuant to [29 C.F.R. � 1614.109(g)] 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 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").
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).
We find both parties had ample opportunity to conduct discovery and develop the record. Moreover, the record does not contain any genuine issues of material fact that would render summary disposition inappropriate.
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). She must generally 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).
The prima facie inquiry may be dispensed with in this case with respect to Complainant's claims, however, because the agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). Specifically, S1 and I1 testified in their affidavits that they observed Complainant looking at another employee's test, sometimes for as long as 30 seconds. Both were not sure they actually witnessed Complainant cheat, so they had I2 and I3 observe the second examination for the purpose of observing Complainant. Both I2 testified she observed Complainant look at another employee's test several times during the second examination. I3 was not sure she saw Complainant cheat, but testified that Complainant was very "fidgety." The Agency then commenced an investigation, which ultimately resulted in Complainant's dismissal from specialized training.
Moreover, Agency officials testified they did not make derogatory statements about Complainant's national origin. The Agency pointed out that, other than cheating on two exams, Complainant successfully completed all aspects of the course. Thus, if Complainant was offended or harmed by any such statements, it did not negatively affect his ability to succeed.
After returning to Philadelphia, Complainant submitted a two-page essay. The Agency discovered that the essay quoted entire paragraphs from sources readily available on the internet without proper citation. As a result, the Agency terminated Complainant's employment on grounds of plagiarism.
To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000); St Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, EEOC Request No. 05950842; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). In his defense, Complainant argues he did not cheat. Further, Complainant argues the Agency omitted a third page from the document he submitted to the Agency. Complainant contends that the third page contains a list of sources he cited in the essay. We find Complainant's arguments unavailing.
The evidence in the record does not demonstrate Complainant was subject to an unlawful hostile work environment. While Complainant contends he complained to his supervisors, there is no evidence in the record the conduct alleged in Claim (1)(a) was sufficiently severe or pervasive and perpetuated a hostile work environment.
Regarding Claim (1)(b), Complainant did not demonstrate the officials did not believe Complainant cheated or fabricated such a story to cover up some other discriminatory animus.
With respect to his second claim, Complainant solely argues that the Agency should have a copy of the email containing his essay submission, and that he does not because he sent it from an Agency computer. This argument is unconvincing, however, because the record reflects that Complainant had used a non-Agency email address to submit the essay.1 Complainant has not demonstrated he was unable to retrieve the email using any computer connected to the internet. Moreover, the record contains a copy of the sources from which the essay quotes.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency's final order implementing the AJ's finding of no discrimination.
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
May 24, 2011
__________________
Date
1 A copy of the email demonstrates Complainant used his personal Yahoo! email address to submit the essay.
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0120100827
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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