0120140665__0120140705
11-16-2016
Neil M.,1 Complainant, v. Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Neil M.,1
Complainant,
v.
Anthony Foxx,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal Nos. 0120140665
0120140705
Hearing Nos. 471-2013-00025X
471-2013-0007X
Agency Nos. 2012-24440-FAA-04
2012-24439-FAA-04
DECISION
On November 27, 2013, Complainant filed two appeals from the Agency's final orders dated October 28, 2013, concerning his equal employment opportunity (EEO) complaints 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 appeals pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final orders.
ISSUES PRESENTED
The issues presented are whether the Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ) properly issued decisions without a hearing, and whether the AJ properly found that Complainant did not prove that he was subjected to discrimination.
BACKGROUND
During the period at issue, Complainant worked for the Agency as an Airway Transportation Systems Specialist (ATSS-210-FG-1) at the Agency's Detroit Technical Services Center in Michigan. On April 25, 2012, and June 27, 2012, he filed formal complaints in which he alleged he had been discriminated against on the bases of race (African-American), color (black), and reprisal when, on March 5, 2012, he learned he was denied time off and cash awards from 2008 through 2011; and on February 29, 2012, he learned he was not promoted into the position of Airway Transportation Systems Specialist (ATSS, FV-2101-1) announced in Vacancy Announcement No. ACL-ATO-11-0060-22382. Both complaints were accepted for investigation.
At the conclusion of the each investigation, the Agency provided Complainant with a copy of the reports of investigation (ROI2) and notices of his right to request hearings before an AJ. Complainant requested hearings.
Over Complainant's objections, the AJ assigned to the case granted the Agency's August 30, 2013, and September 9, 2013, motions for decisions without hearings and issued her rulings without hearings in two decisions, both dated October 22, 2013. In each decision, the AJ found that Complainant failed to prove discrimination as alleged. The Agency subsequently issued final orders adopting the AJ's findings. Complainant thereafter filed the instant appeals.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ (1) erred when she did not consolidate all of his EEO cases; (2) abused her discretion in refusing to rule on his motion to compel discovery regarding the credibility of one of the Agency's management officials; (3) erred when she found there were no genuine issues of material fact regarding each appeal; and (4) erred when she did not find the Agency's reasons for his actions to be pretextual. The Agency filed briefs in opposition to Complainant's appeals in which it contends that the Commission should affirm its final orders.
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other word, 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 documents, statement, 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
In his statement in support of his appeal, Complainant contends that the AJ should have consolidated four of his EEO cases, that is, Agency Case Nos. 2012-24302-FAA-04, 2012-24439-FAA-04, 2012-24440-FAA-04; and 2012-24508-FAA-05. Upon review, we find the AJ's decision to deny consolidation to be an appropriate use of her discretionary authority. See EEOC Regulation 29 C.F.R. �1614.606 (stating that an [AJ] or the Commission may, in their discretion, consolidate two or more complaints of discrimination filed by the same [C]omplainant) (emphasis supplied)."
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 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 weight the evidence but rather to determine whether there are genuine issues for trail. 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); Olive 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 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 the 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] had not had the opportunity to discover information that is essential to her 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 reviewing the records in both cases, we find that the records are adequately developed, no genuine issues of material fact remain, and no further fact-finding is necessary. We also find Complainant was given ample notices, comprehensive statements of the undisputed facts, and opportunities to respond. In response to Complainant's contentions on appeal, we find that Complainant has not presented any persuasive argument that any Agency official associated with the appeals at issue herein has credibility issues such that the AJ should have held a hearing in order to make credibility determinations. Thus, we find that the AJ's decisions to issue rulings without hearings were proper.
Disparate Treatment
To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A complainant must initially establish a prima facie case by demonstrating that she 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, 441 U.S. at 804 n. 14. 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). To ultimately prevail, a 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, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
We presume, without so finding, that Complainant established his prima facie cases of race, color, and reprisal discrimination regarding both appeals. Complainant argues that when the EEO Investigator asked his first-level supervisor (S1), the management official Complainant accuses of denying him time off and case awards, whether S1 knew of Complainant's prior EEO activity, S1 averred that he did not. Complainant argues that S1's denial brings into question S1's credibility because S1 knew that Complainant served as President of the Detroit Chapter of National Black Coalition of Federal Aviation Employees (NBCFAE), which in Complainant's view constitutes prior EEO activity. Whether Complainant's participation in the NBCFAE constitutes prior EEO activity is irrelevant for our purposes because we presume Complainant has established a prima facie case of retaliation regarding his denial of time off and cash award claim. In so doing, we note that the record reflects that S1 learned of Complainant's NBCFAE membership as early as 2003, and despite this knowledge, recognized Complainant's performance from 2005 through 2007 with awards. See ROI-1, at 61.
We now consider whether the Agency stated legitimate, nondiscriminatory reasons for the actions alleged to be discriminatory. S1 stated that Complainant was not awarded time off and cash awards for the period between 2008 and 2011 because he (S1) determined that there were only a limited amount of awards available and decided that, rather than spread the limited amount of awards among 10 to 12 employees, he would recognize fewer employees each year who had made the greatest contribution to the program he managed. See ROI-1, at 61. In other words, S1 decided to give awards to individuals who had the greatest impact on the Agency's performance goals. Id.
We find that S1's articulated reasons for his actions are legitimate and nondiscriminatory. The record shows that one employee received an award in 2008, three employees in 2009, five employees in 2010, and two employees in 2011. The record also shows that, during the years between 2008 and 2011, several Caucasian employees did not receive awards. See ROI-1, at 95 (showing which employees received awards from 2009 to 2011).
Regarding Complainant's non-promotion claim, the Lead Interviewer (LI) stated that Complainant was not promoted into the position at issue because the Selectee provided effective responses to most of the questions posed. See ROI-2, at 70. She further stated that, regarding the question on Continuity of Service requirements, the Selectee provided a strong response and that his responses regarding working with others indicated that he had a strong work ethic and was focused on Agency objectives. Id.
Regarding Complainant's interview, the LI stated that many of Complainant's responses to question were rated as "somewhat effective," which covered some of the points asked but not all. Id. She further stated that Complainant did not seem to know what constituted Continuity of Service. Id. The LI specifically noted that Complainant's response to Continuity of Service did not address Agency directives or the specific requires related to airport runways. Id.
The Agency provided copious notes taken by the LI during the interviews of Complainant and the Selectee which corroborate the interview panel members' testimony regarding their opinion of each interviewee's performance during the interview process. See ROI-2, at F-11 - F-14 (which contains the interviewers' summary regarding Complainant and the Selectee as well as the selecting official's interview official notes). Based on the testimony and interview summaries and notes, we find that the Agency has met its burden of stating non-legitimate reasons for not selecting Complainant for the position at issue.
In the final step in the analysis, the inquiry moves to consideration of whether Complainant carried his burden to demonstrate pretext. In order to prevail on his claim of discrimination, Complainant must show, through probative and preponderant evidence, that the Agency's articulated reasons were a pretext for discrimination. Complainant can do this by showing that the Agency's explanations are unworthy of credence and that its actions were influenced by legally impermissible criteria, i.e., animus toward based on race, color, and prior EEO activity. Complainant presented no evidence, other than his own beliefs and assertions, to demonstrate pretext. However, such statements and speculation, without corresponding probative evidence, do not suffice to meet his burden. See Nagle v. Dep't of the Treas., EEOC Appeal No. 0120092440 (Feb. 4, 2011). We therefore find that Complainant has not established that the Agency's stated reasons were pretextual.
CONCLUSION
Based on a thorough review of the records and the contentions regarding both appeals, including those not specifically addressed herein, we find that the AJ's decision to issue decisions without a hearing was proper. We further find that Complainant did not establish discrimination based on race, color, or reprisal when he was denied time-off and cash awards and not promoted into the position announced in Vacancy Announcement No. ACL-ATO-11-0060-22382. Accordingly, the Agency's final orders are hereby AFFIRMED.
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 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 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
_11/16/16_________________
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 The ROI related to EEOC Appeal No. 0120140665 will be referenced in this decision as ROI-1 and the ROI related to EEOC Appeal No. 0120140705 will be referenced as ROI-2.
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0120140665
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0120140665, 0120140705