0120120983
05-17-2012
Mamdouh K. Morgan, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Mamdouh K. Morgan,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120120983
Hearing No. 550-2011-00310X
Agency No. ARPOM10APR01899
DECISION
On December 7, 2011, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's November 21, 2011, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. The Commission accepts this appeal pursuant to 29 C.F.R. � 1614.405(a).
ISSUES PRESENTED
Whether Complainant was discriminated against, including being harassed, based on his national origin (Egyptian) and religion (Christian Coptic Orthodox) when:
1. He requested sick leave for February 26, 27, and March 18, 2009, but instead was charged leave without pay (LWOP);
2. After he fell in a parking lot on March 16, 2009, his first line supervisor (S1, same national origin and religion as Complainant) denied his request for sick leave to go to therapy;
3. S1 requested a doctor's statement to cover Complainant's absence on April 23-24, although he had no history of sick leave abuse;
4. From September 2009 to February 21, 2010, S1 and Complainant's second line supervisor (S2, national origin Iraq, religion Christian) created an abusive environment by having evaluators/trainers visit his classroom;
5. In an October 2009 meeting with S1 and S2, he was insulted and threatened by S2 and told to improve his teaching;
6. In October 2009, he was told that S2 was angry about his request for a transfer, even though he obtained permission to speak with the Dean of the receiving school who granted the transfer request;
7. S1 made negative comments on his performance appraisal based on S2's recommendation (for the performance appraisal covering the period of October 1, 2008 to September 30, 2009);
8. He received a rating of 4 (Fair) in October 2009 on the above performance appraisal;
9. On March 25, 2010, he received zero points for his Merit Pay review; and
10. He was micromanaged by S1 who even noted when he went to the restroom.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Senior Instructor teaching Arabic at the Agency's Defense Language Institute Foreign Language Center at the Presidio of Monterey, California. He started working there in December 2007.
In June 2010 Complainant filed a complaint alleging the above issues. At the conclusion of the investigation, he requested a hearing before an EEOC Administrative Judge (AJ). Over Complainant's objection the AJ granted the Agency's motion for a decision without a hearing. The Agency then made a final order adopting the AJ's finding that Complainant failed to prove discrimination.
On the leave issues, the AJ recounted that at the sworn transcribed investigatory fact-finding conference, S1 stated that he never denied any of Complainant's leave requests, that he charged Complainant LWOP after he ran out of annual leave; and he did not ask Complainant to bring in a doctor's note. The AJ found that Complainant did not submit any evidence, such as a leave slip, to show he was denied leave, nor rebut S1's testimony when given an opportunity to do so on rebuttal. The AJ found that Complainant failed to produce any evidence whatsoever to raise a genuine issue of material fact as to pretext on the leave issues.
On claims related to monitoring, evaluating, commenting, and giving points related to Complainant's performance, i.e., issues 4, 5, 7, 8, 9, and 10, the AJ found that there were two salient and undisputed facts. First, sometime prior to getting his appraisal, Complainant failed his Instructor's Certification Course (ICC), a requirement to remain employed as an Instructor. Second neither S1 nor S2 were involved in determining whether Complainant passed or failed his ICC. The AJ found that rather than terminate Complainant, S1 and S2 decided to work with him in an effort to help him pass his ICC and continue his employment, both of which occurred. Regarding issue 4, the AJ found that Complainant's classroom was visited to give him additional training and assistance, which helped him. On issue 5, S2 stated that he firmly explained to Complainant the magnitude of failing the ICC, and that he would have to work very hard to improve his teaching so he could pass it.
On Complainant's performance appraisal (issues 7 and 8), Complainant received a rating of Fair, below Successful and above Unsuccessful. In explaining the rating, S1 wrote in the appraisal that Complainant needed to pass his ICC certification. In another part of the appraisal S1 indicated Complainant needed improvement in various performance areas. The AJ found that it was undisputed that the appraisal was part of a process of attempting to improve Complainant's performance. In October 2009, S1 and S2 gave Fair ratings with needs improvement commentaries on the two other instructors who failed the ICC. Both shared Complainant's protected groups. Issue 9 regards merit points, upon which a merit pay award and an increase in base salary increase are based (Complainant got none of these things). The AJ found that it was undisputed that S2 was not permitted by the Provost's Office to give merit points to anyone who failed the ICC, and this was uniformly applied. The AJ also found that it was undisputed that half the points were awarded by an independent Merit Pay Award which decided not to award Complainant any.
On issue 10, being micromanaged, the AJ found that the only specific example Complainant gave was S1 telling him he had been looking for him for an hour when he went to the washroom during a 15 minute break. The AJ recounted that what S1 recalled was that Complainant's team leader and others searched for Complainant to teach his class, and S1 joined the search.
The AJ noted that Complainant testified that issues 4, 5, 6, and 10 were not acts of discrimination. Complainant indicated some or all these incidents were about abusing power, not discrimination. The AJ found that given the above testimony, these issues could not survive a summary disposition as a matter of law. The AJ also found that issue 5 did not rise to the level of actionable harassment, and S1's actions in fulfilling his role as a supervisor to ensure Complainant was meeting his classes, using approved teaching methods, and performing related duties of an Instructor did not amount to "micromanaging."
On appeal, Complainant contends that he was discriminated against based on his age (over 40), and disability when after he fell and injured himself at work on March 16, 2009, he was denied Continuation of Pay (COP) and charged LWOP. He contends that he was prevented from filing an Office of Workers' Compensation (OWCP) case. Complainant also raises claims which arose after the filing of his complaint.1 He appears to suggest he raised all these matters in another complaint, but this is not clear.
In opposition to the appeal, the Agency asks the Commission to affirm its final action.
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). 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 the 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.
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). 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. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). 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).
As an initial matter, we find that the investigation was adequately developed for summary disposition, and that the AJ properly made a decision without a hearing because there were no genuine issues of material fact.
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). He 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, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. 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). 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 Products, Inc., 530 U.S. 133 (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, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
We agree with the AJ's findings that the Agency articulated legitimate, nondiscriminatory reasons for its actions and Complainant failed to prove pretext. We also agree with the AJ that as a matter of law Complainant did not make out a case of discrimination on issues 4, 5, 6 and 10 because he stated they were not motivated by discrimination based on his national origin and religion.
On the leave issue, we add that Complainant claimed that when he asked for sick leave, S1 would tell him to take annual leave or LWOP, which he would then do. S1 countered that Complainant would use up all his sick and annual leave, and have no balance left to use. S2 testified he was told by S1 that when Complainant had no leave balance, he used LWOP. The record reflects that Complainant used sick and annual leave, and he did not dispute there were times when he had no sick balances, which would explain why he would be asked to use annual leave or LWOP. Further, even if S1 asked Complainant to bring a doctor's note, this would not rise to the level of actionable harassment. There is no genuine issue of material fact on the leave issues.
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 action finding 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 17, 2012
__________________
Date
1 These matters are not before us. Also, Complainant should raise concerns about filing his OWCP claim and OWCP sanctioned benefits, such as COP, with the OWCP if he has not already done so.
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0120120983
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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