0120133187
01-06-2016
Samual H.,1 Complainant, v. Maria Contreras-Sweet, Administrator, Small Business Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Samual H.,1
Complainant,
v.
Maria Contreras-Sweet,
Administrator,
Small Business Administration,
Agency.
Appeal No. 0120133187
Hearing No. 520201300031X
Agency No. 0112030
DECISION
On August 10, 2013, Complainant filed an appeal from the Agency's July 15, 2013, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
Whether the Equal Employment Opportunity Commission Administrative Judge appropriately issued a decision without a hearing and found that the Agency did not discriminate against Complainant based on disability when he was terminated during his probationary period.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was hired as a Business Development Specialist, GS-9, in the Agency's Rhode Island District Office, in Boston, Massachusetts. On February 28, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (mental) when on January 5, 2012; he was terminated from his position of Economic Development Specialist.
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 March 22, 2013, motion for a decision without a hearing and issued a decision without a hearing on May 28, 2013.
The AJ found the following facts: Complainant was hired by the Agency as a career conditional employee on January 18, 2011. He served as a Business Development Specialist GS-9 in the Agency's Rhode Island District Office in Boston, Massachusetts. Complainant was required to serve a one year probationary period. Complainant's first line supervisor was the Deputy District Director (DDD). His second line supervisor was the District Director (DD). Complainant was aware that he was required to successfully complete his probationary period. Complainant was a disabled veteran of the Persian Gulf War. He developed issues with anxiety, depression, and stress. DD provided affidavit testimony that he was aware that Complainant had a disability due to the information provided on the certificate of candidates for the position; however he did not know the nature of the disability.
The AJ further found that Complainant revealed to the Agency that he had impairments when he completed a "Self-Identification of Handicap" form SF-256. When completing the form, he indicated that he did not desire to disclose the nature of his impairments to the Agency. Complainant described his impairment as dysthymia, a chronic form of depression, for which he takes medication. Complainant stated that his impairments did not cause any limitation on his abilities. Complainant stated that he did not disclose his impairments to management because he felt intimidated. Complainant mentioned his impairments to two co-workers and told them that the stress he was experiencing at work was "toxic" to him.
Complainant stated that he would have liked to have told DD about his impairments but did not because DD was intimidating. Complainant provided examples of incidents where he was upset by DD's behavior and attributed this to DD's "paranoia and insecurity." Complainant did not request an accommodation for his impairments. Complainant stated that he had meetings with DDD during his time at the Agency regarding various performance issues.
With regard to his conduct, a Business Opportunity Specialist (BOS1) memorialized two separate incidents where Complainant had yelled at her in the office.2 An Economic Development Specialist (EDS1) also documented an encounter with Complainant.3 DD also documented her investigation of Complainant's incidents with BOS1 and EDS1. The Agency terminated Complainant during his probationary period, effective January 5, 2012 due to his conduct and poor performance.
The AJ found that Complainant failed to establish a prima facie case of disability discrimination because he failed to identify a similarly situated individual outside of his protected class. Further, the AJ found that even assuming Complainant established a prima facie case; the Agency provided legitimate, nondiscriminatory reasons for its actions. Specifically, the AJ found that the Agency removed Complainant during his probationary period due to his inappropriate office behavior and his performance issues. The Agency informed Complainant of his performance deficiencies in an interview review in May 2011. Four months into his probationary period, Complainant was given a rating of "below expectation." This rating was given in-part because Complainant and a co-worker provided erroneous information to a member of Congress. Additionally, Complainant continued to have performance issues. His work product was consistently returned to him for additional corrections. Complainant had meetings with DDD regarding his performance but Complainant did not improve. The Agency noted that Complainant did not think that he had any performance issues and did not believe that he needed guidance. During his deposition, Complainant stated that he did not agree with the criticism given by DDD regarding his work performance.
In addition to Complainant's performance issues, Complainant also had conduct issues during his probationary period. The Agency found that Complainant yelled at BOS1 on two separate occasions and was involved in an incident with EDS1. DDD investigated the incidents and documented it.
The AJ found that because the Agency articulated legitimate, non-discriminatory reasons for its actions, the burden shifted to Complainant to prove that the Agency's proffered reasons were a pretext for discrimination. The AJ found that Complainant did not do so. The AJ noted that in response to the Agency's Motion for Summary Judgment, Complainant raised claims that were dismissed by the Agency and alleged that he was not provided a reasonable accommodation. The AJ found that these issues were no longer pending before the Commission and declined to address them.
Complainant also argued that there were genuine issues of material fact that warranted a hearing. However, the AJ found that the facts with which Complainant took issue were not material to the accepted issues in the case. Further, the AJ found that Complainant did not argue that the incidents provided by the Agency in support of its determination regarding his poor performance were insufficient or did not occur. Rather, the AJ found that Complainant merely disagreed with the Agency's assessment of his performance. Complainant believed that his performance was "above satisfactory." The AJ noted that Complainant did not show that the incidents of unacceptable conduct did not occur. The AJ found that Complainant admitted his behavior was unprofessional and unacceptable in the workplace. However, Complainant asserted that the Agency officials deliberately provoked him because of his disability. Complainant asserted that the Agency should have considered his impairment with regard to his conduct and should not have terminated him. Nevertheless, the AJ found that Complainant did not establish that Agency's actions were motivated by discriminatory animus. The AJ found that there were instances where Complainant's conduct was inappropriate, he treated co-workers badly, became angry, and refused to accept constructive criticism from management. The AJ further found that Complainant did not show that he provided enough information regarding his impairments to management for them to determine whether his conduct was not "simply a manifestation of some common personality traits such as poor judgment, quick temper, or impatience."
Ultimately, the AJ concluded that Complainant did not establish that he was discriminated against as alleged. 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. Complainant appealed the final order to the Commission. Complainant did not offer any statements in support of his appeal. The Agency requests that we affirm the final order finding that Complainant was not discriminated against as alleged.
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 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).
In this case, we find that there are no genuine issues of material fact, the record has been adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, he responded to the motion, and he was given a comprehensive statement of undisputed facts. As such, the AJ appropriately issued a decision without a hearing in this case.
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 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, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. 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). At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See Hicks, supra.
Here, we find that assuming arguendo that Complainant established a prima facie case of disability discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions, as stated above. Specifically, the Agency stated that Complainant's performance was insufficient and he had conduct issues in the workplace.
Because we find the Agency articulated legitimate, nondiscriminatory reasons for its actions, we now turn to Complainant's burden to show that the Agency's proffered reasons were a pretext for disability discrimination. We find that Complainant did not do so. Complainant did not offer any evidence to show that the Agency's proffered reasons were not worthy of credence or were motivated by discriminatory animus. Complainant did not offer any statements on appeal, but we note that nothing in the record supports his position that that the Agency was motivated by discriminatory animus. Complainant asserted that DD treated him poorly. Although the record reveals that DD knew Complainant had was impaired due to information provided on the certificate of eligible candidates, nothing in the record indicates that DD knew that Complainant's impairments were linked to his conduct or performance issues. Accordingly, we find that Complainant did not show that he was discriminated against as alleged.4
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final order adopting the AJ's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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, P.O. Box 77960, Washington, DC 20013. 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. Hadd
Carlton M. Hadden, Director
Office of Federal Operations
_1/6/16_________________
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.
2 The record reveals that BOS1 provided a written statement on July 20, 2011, that stated:
on two separate occasions, I was yelled at by [Complainant]. The first time, was on a Monday morning. I cannot remember the date. After the Monday morning staff meeting, I said good morning to [Complainant]. He responded very angrily and told me not to speak to him. I said to him what is wrong with you? He stated that he had been trying to speak to me all morning and that I had not responded and that he did not like it. I briefly explained to him that I had spoken to him in the parking lot but he had not heard me because he was on his phone. We spoke later in the day and he apologized and explained what factors might have contributed to his anger outburst.
The second incident occurred on July 18, 2011, after the Monday morning staff meeting. Near the end of the meeting I noticed [Complainant] making mean faces at me. After the meeting I was walking by [a Co-worker's] office and observed [Complainant]. I asked him why he was making faces at me during the meeting. He yelled very angrily "Why didn't you say something to [DDD]? I told him he had a problem, not to talk to me that way and walked away. After work we talked about the incident and shook hands.
3 The record reveals that EDS1 provided a statement on July 20, 2011, that:
On Tuesday July 12 at about 8:30a.m., [Complainant] entered my office unannounced and positioned himself near me as I was typing at my computer. He had his arms folded was red-faced and shaking. He did not greet me in any manner nor did he indicate he had something to discuss with me. In a stern voice he indicated that he did not appreciate comments I directed at him during the previous morning's staff meeting. He told me my comments were not appropriate and asked me not to do it again. . . . When [Complainant] made his comments during the staff meeting and attributed them to me, the director asked me if I was changing policy. I said that I wasn't and that [Complainant] and I had a discussion about it and that's all. I reminded [Complainant] at the meeting that it was an informal discussion and I asked him why he brought the matter up in a staff meeting. The matter was not pursued any further and the meeting continued. The following morning [Complainant] confronted me in my office. Since that time he has not spoken to or acknowledged me in the office and in my opinion displays an unprofessional demeanor that some would interpret as hostile.
4 Finally, we note that the Commission has long held that where, as here, a complainant is a probationary employee, he or she is subject to retention, advancement, or termination at the discretion of an agency so long as these decisions are not based on a protected status. Coe v. Department of Homeland Security, EEOC Appeal No. 0120091442 (October 7, 2011); Kaftanic v. U.S. Postal Serv., EEOC Appeal No. 01882895 (Dec. 27, 1988) (citing Arnett v. Kennedy, 416 U.S. 134, 152 (1974)). Like the AJ, we simply find no persuasive evidence of discriminatory animus here.
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0120133187