0120142720
09-13-2016
Porter P.,1 Complainant, v. Eric K. Fanning, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Porter P.,1
Complainant,
v.
Eric K. Fanning,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120142720
Hearing No. 560-2013-00029X
Agency No. ARFTLWOOD11OCT04536
DECISION
On July 28, 2014, Complainant filed an appeal from the Agency's June 30, 2014, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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 a Fellow in the Army Material Command Fellows Program (Material Program) and was offered the opportunity to enter the Army Training and Doctrine Command (Training Program). Those who were accepted into the Training Program started at the GS-07 level. Upon graduation from the Training Program, participants were subject to non-competitive promotion up to the GS-13 level. Complainant entered the Material Program effective July 7, 2007.
Complainant indicated that in March or April 2008, he attended a Material Program event in Texarkana, Texas. He was interviewed by the Technical Director located in Fort Leonard Wood. Complainant elected to pursue the opportunity at Fort Leonard Wood. He was reassigned to the Training Program on July 20, 2009. Through the Training Program, Complainant was promoted to a Career Appointment as a Training Specialist, GS-12 on July 18, 2010, and a Supervisory Instructional Systems Specialist, GS-12, on January 16, 2011.
On October 13, 2011, Complainant contacted an EEO Counselor believing that he had been subjected to discrimination. On November 14, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), disability2 and age (51) when:
1. As of the date of his complaint, he had not been promoted to the GS-13 level, despite being told, in March/April 2008, that he would enter as a GS-7 with target grade GS-13 at the end of the five-year training program.
2. In March/April 2010, Complainant called the Technical Director in reference to the GS-13 position when he heard that some of the GS-12s in the program would not receive this GS-13 promotion. He indicated that the Technical Director reassured him that Complainant was on track for a GS-13 position.
3. On September 1, 2011, Complainant noticed that two other Training Program Fellows had been promoted to the GS-13 within the five year time period of the program.
4. On September 6, 2011, Complainant met with the Technical Director who stated that the GS-13 promotion was still going to happen by putting him in a non-competitive position. However, as of October 13, 2011, Complainant had not heard of any such promotion.
The Agency accepted the complaint for investigation. During the investigation, Complainant withdrew claims (2), (3), and (4). 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
Before the AJ, the parties engaged in discovery. During this time, Complainant amended his complaint to include an additional claim. In claim (5), Complainant asserted that he was subjected to discrimination based on retaliation for the instant complaint, when on January 8 and 15, 2013, Complainant was intimidated by the Chief of Maneuver Support Center of Excellence at the Learning and Training Development Division (Chief) who strongly suggesting to him that he should not make any trouble. Complainant claimed that, if he complied, the Chief would find him a GS-13 position. In early February 2013, the Chief called Complainant to tell him he had been doing a good job of not complaining.
On January 31, 2014, the Agency filed its motion for summary judgment. The Agency argued that there were no material facts in dispute. Further, the Agency indicated that Complainant failed to establish a prima facie case of discrimination. Complainant responded to the Agency's motion on February 17, 2014. After reviewing the motions, the AJ determined that summary judgment should be found in favor of the Agency as to claim (1). However, the AJ scheduled a hearing on the events raised in claim (5). On June 3, 2014, Complainant withdrew claim (5) leaving only claim (1) before the AJ.
Over Complainant's objections, the AJ assigned to the case granted the Agency's motion for a decision without a hearing and issued a decision without a hearing on June 18, 2014. The AJ issued her decision listing the undisputed facts. One of the facts determined to be undisputed was that in March or April, Complainant was interviewed by the Technical Director who informed him and other Fellows that they were expected to complete the program at the GS-13 level. Complainant chose to take an assignment at the Fort Leonard Wood location. Complainant rejected an offer for a position at Fort Belvoir. The AJ also noted that of Complainant's class of Fellows, two received GS-13 positions and they were located at Fort Belvoir. Complainant was the only member of his Fellow class at his location while the remaining members of the same Fellow class were located in various installations and were promoted to the GS-12 level. Further, the AJ indicated that on each of Complainant's SF-50 for his promotions remarked that he could be promoted non-competitively to the target level of GS-12 or GS-13.
The AJ then turned to Complainant to establish a prima facie case of discrimination based on race, age, and/or disability. The AJ held that Complainant failed to do so on any basis for he did not provide any evidence to establish a nexus between the Agency's failure to promote him to a GS-13 position because of his protected bases. Assuming that Complainant had established a prima facie case, the AJ held that the Agency articulated legitimate, nondiscriminatory reason for its action. The AJ noted that Complainant's agreement for the program provided him with a GS-12 or GS-13 and he was provided with a GS-12 position. The only two Fellows who received a GS-13 were stationed at Fort Belvoir. Complainant had been provided an opportunity to work at Fort Belvoir but rejected that offer. The AJ also noted that the Agency indicated that due to the economy, no retirements, and/or base realignments and closures, they were not enough GS-13 vacancies. Finding that the Agency provided legitimate, nondiscriminatory reasons, she turned to Complainant to establish that the Agency's reasons were pretext for discrimination. The AJ found that Complainant failed to do so. She noted that all the Fellows were provided the same information regarding the promotion opportunities regardless of protected status. As such, the AJ concluded that Complainant failed to show that he was subjected to discrimination based on his race, age, and/or disability.
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. Complainant appealed asserting that the Technical Director and other management officials did not recall the names of all the candidates for the Training Program or of the conversations with the specific candidates. Complainant asserted that the testimony during the investigation and discovery were false. He also stated that the AJ failed to look at the discovery evidence. As such, Complainant asked that the Commission reject the AJ's decision without a hearing. Complainant claimed in conclusion that the Agency could have sat down with Complainant in order to "attempt to work this out" but it failed to do so through settlement or alternative dispute resolution.
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.
Based upon Complainant's withdrawal of issues, the only claim of discrimination before the Commission is claim (1) regarding the interview that Complainant's expectation that he would enter the Training Program as a GS-7 with target grade GS-13 at the end of the five year program. Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
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 the AJ correctly held that the Agency provided legitimate, nondiscriminatory reasons for its actions. The record indicated that, upon graduation from the Program, participants were expected to receive non-competitive promotions up to the GS-13 level subject to availability of such positions. The record shows that all the participants in the program were provided with the information. Finding that the Agency provided legitimate, nondiscriminatory reasons for its action, we turn to Complainant to establish pretext. Complainant did not provide any evidence to support his claim that he was subjected to discrimination based on his age, race and/or disability. As such, we conclude that the AJ correctly determined that Complainant did not show that he was subjected to discrimination with respect to claim (1).
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 final decision adopting the findings and conclusions of the AJ.
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
September 13, 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 This case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because this matter occurred in 2008, the Commission will use the analytical framework as it existed before the enactment of the ADA Amendments Act of 2008, to determine whether Complainant is an individual with a disability.
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