0120141010
12-08-2016
Otis H.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Otis H.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120141010
Hearing No. 570-2008-00650X
Agency No. 2004-0688-2008100372
DECISION
On January 13, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's December 13, 2013, 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. For the following reasons, the Commission AFFIRMS the Agency's final order which fully implemented the Equal Employment Opportunity Commission's Administrative Judge's (AJ) decision without a hearing which found that Complainant did not demonstrate that he was subjected to discrimination and/or reprisal.
ISSUES PRESENTED
The issues presented in this case are whether the AJ properly issued a decision without a hearing; and whether Complainant established that he was subjected to discrimination and reprisal when he was allegedly treated less favorably than female employees.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Part-Time Food Service Worker, WG-1 at the Agency's Food and Nutrition Service, Medical Center facility in Washington, D.C. On December 10, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when he was given less favorable work assignments and assignments not within his position description. 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 AJ. Complainant timely requested a hearing. When Complainant did not object, the AJ assigned to the case granted the Agency's October 24, 2008, motion for a decision without a hearing and issued a decision without a hearing on January 14, 2009. The AJ found that Complainant did not demonstrate that he was subjected to discrimination and/or reprisal.
Specifically, Complainant, a WG-1 Food Service Worker alleged that on October 18, 2007, his supervisor assigned him to scrub the floors of the Nursing Home and from September 15, 2007 to December 5, 2007, he was assigned to wash posts and pans on five occasions. The WG-1 position description includes assignments to the serving line, dining room, dishwashing unit and preparation area. His duties also included cleaning responsibilities, i.e., on occasion cleaning the grease room.
The AJ, assuming arguendo that Complainant established a prima facie case of discrimination based on sex, found that the Agency presented legitimate, nondiscriminatory reasons for its work assignments, namely, that employees are not assigned duties on a rotational basis but were assigned based on their grade level, the availability of workers, as well as the amount of supervision the employee needed or the task required. Management explained that there were two female employees who worked the morning shift. They were frequently assigned to the dining room because they were familiar to the veterans whom they served. Moreover, the evidence showed that the Agency also assigned the two female employees to the dishwashing unit to wash pots and pans and they were assigned to clean the nursing home areas.
Management also explained that 33 employees' job duties include washing pots and pans. Twenty-nine employees were male and only four employees were female. As such, management indicated that male employees would be assigned more often to wash pots and pans than female employees. Additionally, if an employee requested additional hours beyond their regular schedule, the most frequently assigned tasks were in the dishwashing unit washing pots and pans, or cleaning tasks in the nursing home areas. Complainant requested additional hours on 13 occasions. Therefore, he received assignments to either wash pots and pans or, to clean the nursing home areas.
The AJ also found that Complainant did not demonstrate that he was subjected to reprisal. Specifically, Complainant alleged that the day after he sought EEO counseling, he was assigned the most undesirable tasks to perform, namely, he was told to clean the "grease bucket" room and scrub the floors in the nursing home areas. The AJ found that Complainant presented no evidence that his supervisor was aware of his EEO activity at the time the assignments were made. Notwithstanding, the AJ assumed arguendo that even if Complainant established a prima facie case of reprisal, the Agency articulated legitimate, nondiscriminatory reasons for the assignment. Management explained that the Agency had been subjected to several internal and external hospital surveys of its facilities for sanitation and safety compliance, and the surveys indicated that additional cleaning was needed. These assignments were most often assigned to WG-1 employees.
The AJ found that Complainant presented no evidence other than his conclusory statements which showed that the Agency's articulated legitimate, nondiscriminatory reasons were pretext for discrimination. Moreover, the AJ found that there were no genuine issues of material fact that needed to be determined at an evidentiary hearing so she granted the Agency's motion for summary judgment finding no discrimination and/or reprisal.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that because the AJ issued a decision without a hearing he was not able to prove his case or call witnesses that would have supported his claims. Complainant contends that he and the other male workers are treated differently than the female workers with regard to their assignments. For example, he asserts that the female employees are not assigned to take out the trash or the card board boxes. He also maintains that as a punishment he has repeatedly been assigned to clean the grease room.
In response, the Agency asserts that Complainant has provided no evidence which suggests that the AJ's decision was incorrect or that a hearing was needed in order to resolve this matter. The Agency requests that its Final Order which fully implemented the AJ's decision be affirmed.
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 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 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).
Upon review we find that all of the requirements for summary judgment have been met. In the instant case, we find that AJ properly issued a decision without a hearing as there are no material facts at issue.
ANALYSIS AND FINDINGS
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that assuming, arguendo, Complainant established a prima facie case of discrimination and reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions and Complainant did not show that the reasons given by the Agency were pretext for discrimination.
Further, with regard to Complainant's contentions on appeal, namely, that male employees are treated less favorably than female employees with regard to assignments, we find that other than his conclusory statements he provided no evidence which suggests that the Agency's assignment of duties was discriminatory or that discriminatory animus was involved. We find that the assignments made to Complainant were within his job description. Moreover, we find that statistically men would be assigned to what Complainant refers to as the less desirable duties more often because there are fewer female employees. Therefore, we find that Complainant has not proven that he was subjected to discrimination based on sex and/or reprisal.
CONCLUSION
Accordingly, the Agency's Final Order which fully implemented the AJ's finding of no discrimination and/or reprisal is 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
__12/8/16________________
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.
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