0120140652
05-19-2016
Pasquale D.,1 Complainant, v. Admiral Michael S. Rogers, Director, National Security Agency, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Pasquale D.,1
Complainant,
v.
Admiral Michael S. Rogers,
Director,
National Security Agency,
Agency.
Appeal No. 0120140652
Hearing No. 531-2012-00218X
Agency No. 11-015
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's November 13, 2013 final order concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Telecommunications Engineer at the Agency's Fort George G. Meade, Maryland facility.
On January 27, 2011, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the basis of disability when:
1. on December 6, 2010, he received a Memorandum for the Record (MFR) regarding his conduct, performance, and attendance;
2. his supervisor made false statements regarding his work performance;
3. his co-worker called him names, and threatened to tell management about his work performance;
4. in March 2009, his sick leave was denied;
5. his request for leave was denied after being approved;
6. he was charged with being Absent Without Leave (AWOL) on two occasions;
7. in June 2009, he was placed on a Performance Improvement Plan (PIP); and
8. in June 2009, he was issued a memorandum regarding disruptive behavior in the workplace.
After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. On September 26, 2013, the AJ issued a decision by summary judgment in favor of the Agency.
In finding no discrimination by summary judgment, the AJ found that the record developed during the investigation established the following undisputed facts. During the relevant period, Complainant suffered from anxiety and major depression.
The AJ noted that in regard to claim 1 and 2, the Chief, Provisioning and Network Branch, also Complainant's supervisor ("the supervisor"), issued Complainant a Memorandum for the Record on December 6, 2010. The Memorandum raised concerns regarding Complainant's conduct, performance and attendance and was based, in part, of the direct observations of Complainant's Team Lead. The supervisor stated that the Team Lead informed her that Complainant did not complete his work and the work he did perform contained errors. The Team Lead also informed her that Complainant would sit and stare at the sign-out screen on his computer for extended periods of time, and that he would dismantle his computer and put it back together."
Further, the supervisor stated that during the relevant period Complainant "would have long absences from the work place during the workday, no one knew where he was or what he was doing. Complainant would later claim that he was away from work at a doctor's appointment. He provided documentation on some occasions, on others he did not. Complainant did not advise his management of these absences in advance."
The supervisor stated that when she gave Complainant the memorandum, she explained to him "why he was being given the memorandum. I also advised Complainant that the MR was not going to count against him. Complainant asked me who had provided the information, and I told him that the information had been provided by [Team Lead]. During the meeting Complainant told me that he would provide medical documentation to explain his poor work performance and absences from the work place. To date, Complainant has not provided me with any such documentation...I advised Complainant that he needed to make some changes, which were, showing up for his scheduled work hours, performing the duties as described in his 2011 ACE, as well as other duties requested by his team lead, and advising management of any forthcoming absences or periods that he would be out or away from work."
Regarding claim 3, the supervisor and Deputy Chief stated that they were not aware of Complainant's allegations that he was subjected to harassment when a co-worker called him names and threated to tell management about his performance. The supervisor did concede that Complainant worked with a female co-worker, who was generally disliked by many other employees. Complainant alleged this co-worker berated and belittled him, although he admitted she did not make any references to his disability. The Deputy Chief stated that Agency management moved Complainant to another desk "upon learning of the personality difference between [Complainant] and others in the office."
Regarding claim 4, in March 2009, Complainant requested extended sick leave. Management advised Complainant to contact the Office of Occupational Health and Safety for the purpose of providing additional medical information to justify his leave requests. Once the required documentation was provided, the leave was approved.
Regarding claim 5, the AJ noted that Complainant requested leave through the Leave Bank but his request was denied. The record reflects that the Agency's leave bank coverage is provided to employees with temporary medical problems which prevent them from working. The AJ further noted that an Agency clinical psychologist spoke with Complainant's physician who informed her that Complainant was improving and was capable of working. The Agency physician denied Complainant's leave bank request based on this information, but forwarded Complainant's request to Human Resources. Complainant was approved for the use of Advanced Sick Leave for most of February 2010, as well as Leave Bank for January 2010. Complainant was also approved for Leave Bank coverage on a part-time basis in March 2010.
Regarding claim 6, the AJ noted that Agency policy requires that an employee must notify his supervisor if he is unable to report for duty within the first hour of the workplace. In the event of an unreported absence within the second hour of the workday, the procedures for investigating AWOL [Absent Without Leave] becomes operative. Complainant had been directed to check into the Agency's medical center by 9:00 a.m. on March 25, 2010. When he did not do so, and could not be reached at home by his supervisor, he was placed on AWOL status. Complainant later submitted medical documentation in support of a sick leave request and the AWOL was removed.
Regarding claim 7, Complainant alleges that he was placed on a Performance Improvement Plan (PIP) in June 2009. The Deputy Chief stated that Complainant was placed on a plan because "he was not on track to meet his ACE Objectives. He was placed in PIP to track and assist him to be successful in his ACE rating." The Deputy Chief also stated that Complainant was advised that "as a civil servant he has an obligation to perform work commensurate with his pay grade."2 Complainant received a successful performance rating for the period ending on July 31, 2009.
Regarding claim 8, the supervisor acknowledged that on June 5, 2009, she issued Complainant an Interoffice Memorandum regarding disruptive behavior in the workplace. The supervisor stated she issued the memo as a result of Complainant's "condescending and disruptive" behavior at a meeting.
Based on these facts, the AJ concluded that responsible management officials articulated legitimate, non-discriminatory reasons for the disputed actions.3 The AJ then determined that Complainant did not prove, by a preponderance of the evidence, that these articulated reasons were a pretext designed to mask the true discriminatory motivation.
The Agency fully implemented the AJ's decision in its final order. The instant appeal followed.
Complainant makes no new contentions on appeal.
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.
On appeal, Complainant has provided no argument disputing the AJ's decision in this case to adjudicate this case by summary judgment. 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. Here, Complainant has failed to point to particular evidence in the investigative file or other evidence of record that indicates such a dispute.
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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. See 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. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
We find that the AJ's findings of fact are supported by the substantial evidence in the record and that the AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. The undisputed facts fully support the AJ's determination that the responsible management officials clearly articulated legitimate, non-discriminatory reasons for the disputed actions. After careful review of the record, as well as the arguments presented on appeal, we conclude that Complainant failed to prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask discrimination on the basis of his disability.
The Agency's final order implementing the AJ's decision without a hearing, finding no discrimination, 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
May 19, 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 The record reflects that in her decision, the AJ inadvertently determined that Complainant was not placed on PIP. We note, however, that regardless of the AJ's statement concerning claim 7, this does not affect our disposition of this case.
3 In her decision, the AJ initially noted that Complainant alleged discrimination on the basis of disability. However, at the conclusion of the decision, the AJ inadvertently stated that she found no discrimination on the bases of age and retaliation, instead of on the basis of disability. For purposes of this analysis, we assume, without so finding, that Complainant was a qualified individual with a disability. Moreover, because we determine that the Agency provided legitimate, non-discriminatory reasons for its actions which were not pretextual, the AJ's inadvertent identification of the bases raised does not affect our disposition of this case.
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