0120160261
04-03-2018
Romeo K.,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Romeo K.,1
Complainant,
v.
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120160261
Hearing No. 410-2014-00429X
Agency No. ATL-13-0755SSA
DECISION
On October 6, 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 August 24, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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 or harassment as alleged.
ISSUE PRESENTED
The issue presented in this case is whether the AJ erred in finding that Complainant was not subjected to discrimination or discriminatory harassment as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Technical Expert, GS-12 at the Agency's facility in Decatur, Georgia. Complainant alleged that he was subjected to harassment that resulted in a hostile work environment, after it was reported by a coworker that he and another supervisor indicated that they were going to get rid of the Assistant District Manager (ADM) and that she should watch what she eats. The comment was reported and Complainant was demoted from his supervisory position to a nonsupervisory position for insubordination.
Complainant maintained that the ADM treated him and others in a demeaning, demoralizing manner and that her management style had caused low morale. An investigation revealed that the employees were "subject to excessive status requests to the point that it interfered with public service."
On November 25, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), age (60), and reprisal for prior protected EEO activity when:
1. On August 7, 2013, he was reassigned from the position of Supervisory Social Insurance Specialist (operations Supervisor) to the position of Social Insurance Specialist (Technical Expert) at the same grade level in another office; and
2. Since December 2012, the ADM spoke to him in a demeaning tone.
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. over Complainant's objections, the AJ assigned to the case granted the Agency's February 3, 2015, motion for a decision without a hearing and issued a decision without a hearing on July 10, 2015. The AJ determined that Complainant could not establish discrimination or a claim of harassment based on his race, sex, age, or in retaliation for prior EEO activity with respect to either of his allegations. Specifically, the Agency explained that after it was reported that Complainant and another supervisor stated that they would "do anything to get rid of [the ADM]," Complainant was transferred from his position because the ADM was worried about her personal safety. The ADM indicated that she considered Complainant's action an act of insubordination.
The AJ determined that Complainant also did not show that he was subjected to discriminatory harassment, when he maintained that the ADM spoke to him in a demeaning tone. Specifically, Complainant maintained that the ADM questioned him about a sick leave request. She asked why he was taking the entire day off for a doctor's appointment. Complainant was offended by the question but the ADM approved his leave for the entire day. She also told him that she wanted him to check on an employee and she told Complainant "I mean now." Additionally, she requested that Complainant provide a work status update which was a routine function of his supervisory position. The Agency maintained that even if Complainant perceived the ADM's speaking tone to be demeaning, his allegations appear to reflect a personality conflict between Complainant and the ADM rather than discriminatory animus. The AJ found that the incidents complained of were work-related incidents and were not severe or pervasive enough to establish a hostile work environment. 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
On appeal, Complainant contends, among other things, that the AJ erred in not having a hearing. He maintains that the decision is based on false information provided by the managers involved. He argues that the AJ overlooked his evidence and did not order the Agency to respond to his Request for Production. Moreover, Complainant contends that "there is a clear pattern of disparate treatment; African Americans, including the Complainant, were treated differently and less favorably than White employees; and Complainant, based on the merits and procedurally, was denied due process."
In response, the Agency contends, among other things, that the AJ correctly found that Complainant did not prove his case. The Agency contends that the Agency articulated legitimate, nondiscriminatory reasons for its actions, and Complainant did not show that the reasons were pretext for discrimination. Moreover, the Agency maintains that the incidents complained of were common work-related incidents that were not severe or pervasive enough to establish a hostile work environment.
ANALYSIS AND FINDINGS
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).
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ correctly found that there were no material facts at issue. We find that even if we assume arguendo that Complainant established a prima facie case of discrimination as to all of his bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant was demoted due to insubordination, and the ADM's interactions with Complainant were all work-related. We find that Complainant did not show that the Agency's reasons were pretext for discrimination.
Specifically, we find that Complainant did not establish that he was subjected to a hostile work environment. Like the AJ, we find that the incidents complained of were work-related interactions and were not severe or pervasive enough to establish a hostile work environment. The Commission has long held that Title VII is not a general civility code and only prohibits harassment that is so objectively offensive as to alter the conditions of Complainant's employment. See Oncale v. Sundowner Offshore Servs., Inc. 523 U.S. 75,80-81 (1998). Finally, we find that Complainant's contentions on appeal are immaterial to the findings in this case because other than conclusory statements, he has not provided any evidence which shows that the AJ erred or that he was subjected to discriminatory harassment.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Order which found that Complainant did not demonstrate that he was subjected to discrimination or harassment.
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
_4/3/18_________________
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.
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