0120143121
12-09-2016
Michel H.,1 Complainant, v. John Kerry, Secretary, Department of State, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Michel H.,1
Complainant,
v.
John Kerry,
Secretary,
Department of State,
Agency.
Appeal No. 0120143121
Hearing No. 570-2013-00418X
Agency No. DOSF12012
DECISION
Complainant filed an appeal from the Agency's August 12, 2014 final order concerning her equal employment opportunity (EEO) complaint. He alleged 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts this appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Administrative Assistant at the Agency's Foreign Services Institute, Political Training Division, in Arlington, Virginia.
On March 29, 2012, Complainant contacted an EEO Counselor. On August 1, 2012, he filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American / Native American), sex (male), age (51), and reprisal for prior protected EEO activity under Title VII, when:
1. in March of 2012, he was issued a negative performance evaluation which he believed did not accurately reflect his work performance.
2. in September, October and November of 2011, his requests to take Contracting Officer Representative (COR) training were denied; and
3. Since August of 2011, he was subjected to a hostile work environment.
The Agency accepted claims 1 and 3 for investigation. The Agency characterized Complainant's claim 3 as alleging a "hostile work environment characterized by, but not limited to, false accusations, hyper-scrutiny of [Complainant's] work, and denial of professional opportunities" since August of 2011. The Agency dismissed claim 2 for untimely EEO Counselor contact.2
The EEO Counselor's Report confirms that Complainant was alleging both a hostile work environment claim and a disparate treatment claim. He specifically alleged that he was treated differently than other employees and retaliated against for his prior EEO complaint and for opposing discriminatory practices. The EEO Counselor noted that Complainant asserted that "there are two sets of rules in his office, one for him and one for everyone else."
At the conclusion of the investigation, Complainant was provided a copy of the investigative file. He requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). After both parties moved for summary judgment, the AJ issued a decision, in favor of the Agency, finding no discrimination.
In reaching this decision, the AJ found the following facts, developed during the investigation, were undisputed:
Complainant is an African American male who also identifies himself as a Native American. He stated that he was the "only non-White in the office." He also averred that he was the oldest employee in his work unit, except for one person in his chain of command. His immediate supervisor was the Division Director (Caucasian male, older) ("RMO1"). Complainant named RMO1 and the Deputy Director (Caucasian female, younger) ("RMO2") as the primary responsible management officials in this action. In her capacity as Deputy Director, RMO2 had occasion to assign work to Complainant.
Complainant filed previous EEO complaints with the Agency in 2004 and 2006. RMO2 was named in one of these earlier EEO complaints. Complainant also had written letters and had meetings, in 2011 and 2012, with management officials in which he complained of a discriminatory hostile work environment and accused the Agency of not complying with the federal regulations.
For the first half of 2011, a former manager was Complainant's rating official. The former manager established his performance plan, but the former manager left in July 2011.
RMO1 became Complainant's supervisor in August of 2011 and prepared his performance evaluation for 2011. Complainant's overall rating for 2011, provided to him in March 2012 by RMO1, was "Not Successful." Complainant was rated "Not Successful" in two areas, "Achieving Organization Results" and "Interpersonal Skills and Communication." Although he was asked to do so, Complainant did not provide RMO1 with a list of his 2011 accomplishments in preparation for the evaluation.
Complainant disagreed with the performance rating. He said that he informed RMO1 and higher authorities of his concerns and apprised management that RMO1 never met with Complainant to discuss his work commitment, his job expectations, and any performance issues as was required. Complainant informed his management at the time that he felt "disrespected" and "belittled."3
Course Coordinators working with Complainant in 2011 had reported to RMO1 that Complainant was responsible for errors in course materials, which persisted even when pointed out to him. They also reported that Complainant compiled course materials at the last minute leaving inadequate time for course preparation. Finally, the Course Coordinators reported to RMO1 that they had found Complainant sleeping or watching television on his computer in the office.
RMO2 complained to RMO1 that Complainant failed to respond to emails and verbal requests confirming that assignments had been completed.
During a meeting held on December 16, 2011, between Complainant, RMO1 and RMO2, concerning a purchase card review, there was a discussion about missing documentation needed for the review. RMO2 laid the blame for the missing documentation on Complainant. Complainant became defensive and hostile and walked out of the meeting.
Following this incident, RMO1 issued Complainant a counseling memorandum instructing Complainant to work with the Deputy Director "effectively, and to comply with her direction, especially on issues that [RMO1] delegated to her such as purchase card management." The counseling memorandum stated that Complainant's "outright, verbal refusal to do so in a meeting on December 19, 2011 was tantamount to insubordination." The counseling memorandum also advised him that it was "in [Complainant's] interest to confirm that he has completed 'taskings,' either in email or verbally, so that colleagues and superiors would know when his work had been completed." The memorandum also told Complainant that "the best way to earn respect was...always keep a positive, professional attitude." Complainant requested that RMO1 rescind the counseling memo. RMO1 refused.
AJ Decision
Based on the evidence recited above, the AJ concluded that the record was complete and appropriate for summary judgment. The AJ "determined that there are no material facts in genuine dispute and that there are no genuine issues of credibility to be determined on the Complainant's claims of discrimination."
Next, the AJ reasoned that the record evidence did not support the establishment of a prima facie case of race, sex or age discrimination, because "Complainant has failed to identify similarly situated individuals outside of his protected classifications who were treated more favorably under similar circumstances." The AJ acknowledged that Complainant identified a Caucasian female employee as a comparator, but found that the comparator was not an "appropriate comparator," because Complainant did not compare himself with "similarly situated employees . . . with similarly observed work performance behaviors whose evaluations did not reflect the poor performance." Decision at page 5. The AJ acknowledged that Complainant was alleging that RMO2 "looked down on him because at this age, he had only reached a GS-06 level," but the AJ reasoned that the assertion was without corroboration. The AJ noted Complainant's claim that the Agency "looked into" and took seriously claims brought by Caucasian females, but did not investigate his claims of harassment against him.
With regard to the retaliation claim, the AJ assumed that Complainant established a prima facie case of retaliation, but found that the Agency met its burden of articulating a legitimate, nondiscriminatory explanation for its actions. The AJ stated "from their standpoint, Complainant's performance was unsatisfactory in certain areas, he displayed poor interpersonal skills and he was not amenable to criticism."
The AJ noted that Complainant disputed the rating and the record evidence cited by the Agency to support its position that Complainant performed poorly, but the AJ found that "Complainant has not carried his burden of proving that the Agency's articulated reasoning is pretexual."
The AJ found that "there is insufficient evidence to establish that the harassment was severe or pervasive and that it had the effect of altering the Complainant's working conditions. The AJ noted Complainant's allegation that he reported the harassment to his managers but the managers failed to act upon his complaints." The AJ stated, "Because it is found that there is insufficient evidence to establish the existence of hostile environment harassment, I do not reach the issue of the Agency's response to Complainant's harassment claim."
The AJ granted the Agency's Motion for Summary Judgment. The AJ stated "when viewing the facts in a light most favorable to the Complainant, a preponderance of the evidence does not support Complainant's claims of discrimination or retaliation." Decision at p. 8.
The Agency adopted the AJ's decision as its final action. The instant appeal followed.
ANALYSIS AND FINDINGS
We must 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.
On appeal, Complainant argues that the AJ erred in issuing summary judgment because there are material facts at issue. First, we note that Complainant, as well as the Agency, moved for summary judgment before the AJ. Moreover, in order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. While Complainant has, in a very general sense, asserted that facts are in dispute, he has failed to point with any specificity to particular evidence in the investigative file or produce other evidence that indicates such a dispute. "Mere allegations, speculations and conclusory statements, without more, are insufficient to create a genuine issue of material fact." Lee v. Department of Homeland Security, EEOC Appeal No 0520110581 (January 12, 2012), citing to Baker v. U.S. Postal Service. EEOC Appeal No. 01981962 (June 26, 2001), request for reconsideration denied, EEOC Request No. 05A10914 (October 1, 2001).
Disparate Treatment
Here, Complainant alleges that the Agency imposed two different standards and singled him out for harsher treatment than other employees with regard to his performance appraisal and general work environment because of his race, age and prior EEO activity.
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).
We agree with the AJ that responsible Agency management articulated legitimate, non-discriminatory reasons for the disputed actions. RMO1, the new supervisor who provided the negative appraisal, stated that he received complaints from Course Coordinators concerning Complainant's work performance, timeliness and attitude towards work in preparing materials for training courses. He also had received complaints from RMO2 concerning Complainant's compliance with her directives on projects where she had delegated authority from RMO1. Finally, RMO1 recounted the incident at the meeting on December 19 and the resulting counseling memorandum. This is a sufficient articulation of legitimate, non-discriminatory reasons for the negative performance rating given to Complainant. After careful review of the evidence of record, we further affirm the AJ's conclusion that Complainant failed to prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask the true discriminatory or retaliatory motivations.
Hostile Work Environment
To establish a claim of harassment, Complainant must show that: (1) he is a member of a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the protected class; (4) the harassment had the purpose or effect of unreasonably interfering with the work environment and /or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. Johnson v. Department of Homeland Security (Immigration and Customs Enforcement), EEOC Appeal No. 0120113331 (July 1, 2014). The evaluation "requires careful consideration of the social context in which particular behavior occurs and is experience by its target." Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998).
To prove his hostile work environment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case because of his race, age or prior, protected activity. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself.
Here, we agree with the AJ that there is simply insufficient evidence that the actions complained of were related in any way to Complainant's race, age or prior, protected activity. Therefore, Complainant cannot establish the existence of a discriminatory hostile work environment.
CONCLUSION
Accordingly, for all of the reasons stated above, we AFFIRM the Agency's final action adopting the AJ's conclusion that no discrimination or unlawful retaliation had been established.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 tends 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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
December 9, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 As Complainant has not challenged this dismissal on appeal, we will not address it further in this decision.
3 As an example, Complainant stated that RMO2 had questioned him in front of colleagues as to his reasons for requesting sick leave. Complainant averred that the official essentially called him a liar and questioned his whereabouts.
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