0120160225
02-02-2018
Randolph A.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Randolph A.,1
Complainant,
v.
Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120160225
Hearing No. DON-13-00109-02373X
Agency No. DON-13-00109-02373
DECISION
On October 14, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's September 22, 2015, 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.
ISSUES PRESENTED
Whether the Equal Employment Opportunity Commission Administrative Judge's (AJ) issuance of a decision without a hearing was appropriate and whether Complainant established that he was terminated based on his race (African-American).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Ordnance Equipment Repairer at the Agency's Navy Munitions Command Conus East Division facility in Yorktown, Virginia. On August 16, 2013, Complainant filed an EEO complaint alleging that the Agency harassed and discriminated against him on the basis of race (African-American) when:
1. On September 26, 2012, his supervisor (S-1) stated that he "can't stand Navy Chiefs . . . they think they know it all and they are lazy and do not want to work."
2. On October 10, 2012, S-1 yelled and screamed at Complainant that breakfast was over; and again on December 15, 2012, for not wearing safety shoes.
3. On February 6, 2013, S-1 charged Complainant six (6) minutes for being late, but S-1 did not charge Complainant's two (2) co-workers for being late on February 11, 2013 and April 5, 2013.
4. On April 4, 2013, S-1 ordered Complainant to move material against the wall of Building 1346 and then accused Complainant of damaging the wall.
5. On April 5, 2013, S-1 allowed a co-worker to work overtime event though he was 30 minutes late; whereas three (3) months earlier S-1 told Complainant he had to work the full ten (10) hours if he was selected to work overtime.
6. On April 15, 2013, S-1 asked Complainant why he was asleep while he was taking his break; however, on April 10, 2013, S-1 did not say anything to Complainant's co-worker when the co-worker was sleeping.
7. On May 13, 2013, S-1 yelled and screamed various profanities when he accused Complainant of hitting bulletin boards with the stacker.
8. On June 24, 2013, Complainant's employment was terminated.
The Agency investigated and found the following regarding Complainant's allegations:
1. Regarding Complainant's allegation that S-1 stated that that he "can't stand Navy Chiefs . . . they think they know it all and they are lazy and do not want to work," that Agency found that S-1 made derogatory comments about retired Navy Chiefs to Complainant and to a white co-worker (W-1) who was also a retired Navy Chief. S-1 also told a white co-worker (W-2) that he did not like retired military personnel because he believed that they "are double dipping."
2. Regarding Complainant's allegation that S-1 yelled and screamed at him, on October 10, 2012, that breakfast was over; and on December 15, 2012, for not wearing safety shoes, the Agency found that S-1 yelled and cursed at employees, both black and white. S-1 was known to slam doors, act childish and throw temper tantrums. Many employees found S-1 to be abusive and an unpleasant individual with which to work, including four (4) specifically identified black and white co-workers. One of the white co-workers had informed others that he was considering taking another job because of S-1's behavior.
3. Regarding S-1 charging Complainant six (6) minutes for being late, but did not charge Complainant's two (2) co-workers for being late on February 11, 2013 and April 5, 2013, the Agency identified specific white employees who had also been docked pay by S-1 for being late to work.
4. Regarding the incident on April 15, 2013, S-1 asked Complainant why he was asleep while he was taking his break; however, on April 10, 2013, S-1 did not speak to Complainant's co-worker when the co-worker was sleeping. The co-worker, whom Complainant compared as similarly situated, was black, the same race as Complainant.
5. Regarding Complainant damaging the wall on April 4, 2013, the Agency explained that Complainant was in his probationary period. While operating a forklift, Complainant ran into the outside wall of a building. He did not report the accident. After it was discovered, S-1 attempted to talk with Complainant, but Complainant refused to talk to him. Complainant's second line Supervisor (S-2) verbally counselled Complainant. Complainant "assured S-2 that "it would not happen again. Complainant continued to work for the Agency.
6. Complainant had a second forklift accident on May 13, 2013. He damaged bulletin boards. A third supervisor conducted the investigation into this incident, and Complainant admitted that he contacted "at least one" of the damaged bulletin boards. The Agency terminated Complainant after the second incident.
7. Complainant provided evidence of a white male comparator. However, Complainant's comparator was not in his probationary period and only had been involved in one accident.
At the conclusion of the EEO 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. The Agency filed a motion for a decision without a hearing. The AJ assigned to the case granted the Agency's August 1, 2014 motion and issued a decision without a hearing on August 12, 2015. 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.
CONTENTIONS ON APPEAL
Complainant did not submit a statement on appeal.
ANALYSIS AND FINDINGS
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 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 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).
Denial of a Hearing
Upon review of the record, we find that there is no genuine issue of material fact presented here. The record has been adequately developed, Complainant was given ample notice of the Agency's motion for a decision without a hearing, he was given a comprehensive statement of the allegedly undisputed material facts, he was given the opportunity to respond to such a statement, and he was given the chance to engage in discovery before responding, if necessary. We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in his favor, as explained below. Therefore, we find that the AJ's issuance of a decision without a hearing was appropriate.
Disparate Treatment
Complainant claims that he was disparately treated because of his race. 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 he 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).
Here, the Agency determined that S-1 treated Complainant in a manner experienced by many of the employees, both Black and White. Complainant failed to demonstrate that any of the Agency's legitimate, nondiscriminatory reasons for its actions were pretext for discrimination. There is an absence of any indication that a discriminatory animus based on Complainant's race was the true motivation behind the Agency's actions. Therefore, the Commission determines that the Agency articulated legitimate, nondiscriminatory reasons for its actions, which Complainant failed to show were pretext for discrimination.2 Likewise, we do not find that Complainant established that he was subjected to unlawful harassment based on his race.
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 order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
_2/2/18_________________
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 Where a complainant is a probationary employee, we have long held that he or she are subject to retention, advancement, or termination at the discretion of an agency so long as these decisions are not based on a protected category. Kaftanic v. U.S. Postal Serv., EEOC Appeal No. 01882895 (Dec. 27, 1988) (citing Arnett v. Kennedy, 416 U.S. 134, 152 (1974)).
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