0120111090
04-11-2012
Manuel R. Alba, Complainant, v. Gerald A. Reynolds, Chairman, U.S. Commission on Civil Rights, Agency.
Manuel R. Alba,
Complainant,
v.
Gerald A. Reynolds,
Chairman,
U.S. Commission on Civil Rights,
Agency.
Appeal No. 0120111090
Hearing No. 570-2008-00817X
Agency No. 2008-01
DECISION
On November 18, 2010, Complainant filed an appeal from the Agency’s
October 18, 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. The Commission deems the appeal timely and accepts it
pursuant to 29 C.F.R. § 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Social Science Analyst at the Agency’s Office of Civil Rights
Evaluation in Washington, D.C.
The record indicated that during the 2006-2007 rating period, Complainant
primarily worked on two projects: the Campus Anti-Semitism Campaign and
as Acting Director of Public Affairs. In October 2007, Complainant met
with the Acting Chief for his performance evaluation. Complainant was
rated as “commendable” for the 2006-2007 rating period and received
a bonus for his rating. However, he did not receive a Special Act
award for either of his projects. Complainant indicated that the other
employees who also served as Acting Director received a Special Act award.
Further, Complainant indicated that other staffers who contributed to
the Anti-Semitism project also received a Special Act award.
On January 15, 2008, Complainant filed an EEO complaint alleging that
the Agency discriminated against him on the bases of national origin
(Hispanic) and sex (male) when he did not receive a Special Act award
for his performance during the 2006-2007 performance year.
The Agency accepted the complaint and conducted an investigation.
Complainant was provided 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.
The Agency filed a motion for summary judgment on March 16, 2009,
asserting that Complainant failed to establish a prima facie case of
discrimination based on national original and/or sex. The Agency
noted that Complainant was the Acting Director from April 4, 2006 to
August 3, 2006, and worked on the project from spring 2006 to November
2006. The Agency conceded that two other employees who worked on the
Anti-Semitism campaign (Co-worker 1, an Asian female, and Co-worker 2,
a Black female) received a Special Act award. Co-worker 1 was given the
award for “[c]oordinating the Agency’s public education campaign
relating to campus Anti-Semitism.” Co-worker 2 received the award
for her technical work on the campaign which included placing webpages
on the Agency’s website. The Agency asserted that Co-worker 2’s
work “in-house” save the Agency over $50,000. In addition, the
Agency noted that Co-worker 1 did not receive a Special Act award for
her work as Acting Director. However, the Agency did provide a Special
Act award to Co-worker 3 (Black female) and Co-worker 4 (Black female)
for their work as Acting Director. The Agency found that Complainant did
not establish a prima facie case of disparate treatment. Specifically,
the Agency argued that Complainant did not establish that his activities
were similar to those performed by Co-workers 1, 2, 3 and 4. As such,
the Agency asserted that the matter was appropriate for summary judgment
in the Agency’s favor.
Complainant responded to the Agency’s motion. Complainant argued he
has, in fact, established a prima facie case of discrimination based on
his national origin and sex. Complainant noted that of the four employees
assigned the Acting Director position, he was the only one not nominated
for the Special Act award. Complainant indicated that Co-workers 1, 3,
and 4 were nominated for the award and he was the only Acting Director
who was not nominated. Complainant also asserted that he was involved
with the Anti-Semitism campaign and that he was the only individual who
was not recognized for his work. He indicated that his initial work on
the campaign was extensive, although his involvement in the project was
reduced in November 2006. Complainant believed that Co-worker 1 took
credit for Complainant’s work on the project. Complainant claimed
that he was the coordinator of the project in its formative stages
and Co-worker 1 took over after he was pushed out of the project.
Complainant acknowledged that he did not have the technology experience
to provide the same type of work Co-worker 2 provided to the project.
However, Complainant believed that he was similarly situated to Co-worker
1 regarding her work on the Anti-Semitism project. Therefore, Complainant
asserted that he established a prima facie case of discrimination.
As such, Complainant concluded that the Agency’s motion for summary
judgment should be denied.
On April 6, 2009, the Agency responded to Complainant’s opposition to
its motion for summary judgment. The Agency again argued that Complainant
failed to establish a prima facie case of disparate treatment. Further,
the Agency indicated that it articulated legitimate, nondiscriminatory
reasons for its decision not to award Complainant a Special Act award.
The Agency noted that the Staff Director averred that no one felt
that Complainant deserved the award. The Staff Director stated that
Complainant was considered an under-performer and a “clock-watcher.”
The Staff Director also asserted that Co-worker 2’s work on the
website saved the Agency from having to contract out the web work.
As for Co-worker 1, the Staff Director stated that her work was excellent
regarding the coordination of the project. The Staff Director noted
that Co-worker 1 also has conducted outreach on the project and received
excellent reviews on her briefings. He also asserted that she had new
ideas on how the Agency can partner with other organizations and groups
to work on the project.
The Agency then alleged that Complainant’s work as Acting Director
did not warrant a Special Act award. The Staff Director averred that
the other Acting Directors did terrific work beyond what was expected of
them in an acting role. In contrast to Co-workers 1, 3, and 4, the Staff
Director indicated that Complainant made the least of the opportunity,
had the lowest productivity, and pushed responsibilities off onto his
co-workers. The Staff Director also noted that Complainant would leave
for the day regardless of what work was left to be done and allowed
projects to fall through the cracks. As such, the Agency asserted it
provided legitimate, nondiscriminatory reasons for failing to nominate
Complainant for a Special Act award. Accordingly, the Agency argued
that summary judgment was appropriate in its favor.
Complainant filed a reply to the Agency’s response on April 14, 2010.
Complainant again argued that he established a prima facie case
of discrimination. For the first time, Complainant argued that he
was pushed out of the Anti-Semitic project so that the Staff Director
could deny him credit for his work. Complainant then argued that the
Agency failed to articulate legitimate, nondiscriminatory reasons for
its action. Complainant claimed that the Staff Director only attacked him
as a clock watcher and a low performer after he filed his EEO complaint.
Complainant insinuated that the attack on his performance was a personal
attack on Complainant as well as his family and his national origin.
Complainant also contested the Staff Director’s assertion that
Complainant let things fall under the cracks. Complainant provided an
email exchange showing that on one occasion in December 2006, Complainant
stayed until 3:45 p.m., beyond his normal end time of 3:00 p.m., without
compensation or compensatory time. Further, Complainant argued that he
was in constant contact during the day via e-mail. As such, he believed
that the Agency’s reasons were not legitimate for denying him the award.
Therefore, Complainant requested that the AJ deny the Agency’s motion
for summary judgment.
On September 29, 2010, the AJ granted the Agency’s motion for
summary judgment. In her decision, the AJ determined that the evidence
gathered during the investigation established the following undisputed
facts. Complainant was detailed into the position of Acting Public Affairs
Director between April 4, 2006 and August 3, 2006. There were three
other individuals who were also rotated into the position. Co-workers 3
and 4 received a Special Act Award at the end of the performance year
for their work while acting in the position. Complainant and Co-worker
1 did not receive a Special Act award for their work in this acting
capacity. Also, during the performance year, Complainant worked on
the Campus Anti-Semitism Campaign between spring 2006 and November
2006. Ultimately Co-workers 1 and 2 received Special Act awards related
to this project. Complainant was not nominated for an award.
The AJ found that, even assuming Complainant established a prima
facie case of discrimination, the Agency’s management witnesses
articulated legitimate nondiscriminatory reasons for the awards given.
Agency management witnesses stated that Co-workers 3 and 4 received the
award for working as Acting Chief of the Public Affairs unit because
they performed above and beyond the scope of their duties during
their respective details. The AJ noted that there were statements that
Complainant’s productivity was low and he pushed his responsibilities
off on co-workers.
With respect to the Special Act award for the Campus Anti-Semitism
Campaign, Co-workers 1 and 2 received the award for their work. According
to Agency witnesses, one coordinated the entire campaign and was proactive
and self-directed throughout her involvement with the campaign. Co-worker
2 designed, coded and programmed relevant web pages on the Agency’s
website, which saved the Agency over $50,000 by not having to hire an
outside contractor. Her other activities during the performance year
saved the Agency an additional $63,000 and were considered when she
received the award. According to Agency witnesses, Complainant went on
annual leave in November 2006 in the middle of the campaign, and his
involvement with the project lessened considerably when he returned.
The AJ concluded that, other than his bare assertions, Complainant did
not show that his denial of the Special Act award was based on his sex
or national origin. As such, the AJ found that Complainant failed to
show that the Agency’s reasons were a pretext for discrimination.
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. This appeal followed without specific
argument. The Agency requested that the Commission affirm its decision
adopting the AJ’s finding of no discrimination without a hearing.
ANALYSIS AND FINDINGS
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.
We note that Complainant has not specifically argued that there are
material facts in dispute. Complainant’s main argument regarding
summary judgment was that he had, in fact, established a prima facie
case of discrimination based on his national origin and sex. However,
the record clearly shows that the AJ assumed, for purposes of analysis,
that Complainant had established a prima facie case. Therefore,
Complainant’s arguments regarding his prima facie case of discrimination
are not material.
Complainant then challenged the Agency’s reasons for denying him the
award. Complainant has argued that he was productive while he was the
Acting Director and made himself available via e-mail during the day.
Further, he asserted that he was a major player in the Anti-Semitism
project but the Staff Director took steps to reduce the credit he
received for his work. In essence, Complainant argued that there were
material facts in dispute as to whether the Agency’s legitimate,
nondiscriminatory reasons for denying him an award were in fact pretext
for discrimination.
In support of his claim that he should have been provided an award for his
work as the Acting Director, Complainant provided an e-mail for December
7-8, 2006, in which he indicated that he was able to stay until 3:45
p.m., beyond his normal 3:00 p.m. departure time. Complainant otherwise
merely asserted in his motions without providing any supporting evidence
that he was not a “clock-watcher.” Complainant also noted that he
did not feel that he made the least of his opportunities of his time
as Acting Director. Complainant asserted that others took over his
projects and lead positions, thereby not allowing him to excel. We note
that Complainant merely made arguments without documented support.
Such arguments alone do not establish that there is a genuine issue
of material fact that the Staff Director made these observations about
Complainant’s work and productivity levels when he was assigned the
Acting Director position. Similarly, Complainant argued that he should
have been granted the award for his work on the Anti-Semitism campaign for
which he acted as lead until November 2006. Complainant claimed that he
was pushed out of the assignment despite his work on the projects. Again,
Complainant provided no support for his arguments to establish material
facts in dispute. Therefore, we find that Complainant has not shown
that the AJ’s improperly issued a decision without a hearing.
A claim of disparate treatment based on indirect evidence 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 or she 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. 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. 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. 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. U.S. Postal Serv. Bd. of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp.,
EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health
and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington
v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, we find that management has articulated
legitimate, nondiscriminatory reasons for its decision not to provide
Complainant with a Special Act award. We note that, as stated above, the
Staff Director averred that no one recommended Complainant for the Special
Act award for either his time as Acting Director or for his work on the
Anti-Semitism project. The record also contains additional affidavits
from co-workers and management officials showing that Complainant’s
performance was not at the level which deserved the accolades associated
with the Special Act award. The Agency noted that the Special Act award
was not based on his performance appraisal. As such, we find that the AJ
properly found that the Agency articulated legitimate, nondiscriminatory
reasons for its decision.
We now turn to Complainant to show that the Agency’s reasons were
pretext for discrimination based on his national origin and/or sex.
Upon review, we find that Complainant has only offered his bald statements
arguing that he believed he made the most of his opportunities and should
have been awarded as his co-workers were. However, Complainant failed
to provide support for his beliefs and assertions.
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 adoption of the AJ’s decision without a hearing 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
April 11, 2012
__________________
Date
2
0120111090
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111090