0120150404
04-12-2017
Stuart M.,1 Complainant, v. Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Stuart M.,1
Complainant,
v.
Jeff B. Sessions,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.
Appeal No. 0120150404
Hearing No. 551-2012-00135X
Agency No. FBI201100233
DECISION
On November 3, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's November 3, 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. 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 which found that Complainant did not demonstrate that he was subjected to race discrimination or harassment.
ISSUE PRESENTED
The issue presented is whether the AJ properly found that Complainant did not demonstrate that he was subjected to discrimination and harassment when, among other things, he was removed from his probationary position.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Investigative Specialist, Mobile Surveillance Team, at the Agency's FBI Portland Division, in Washington. Complainant alleged, among other things, that he was the only African American in his work group. He maintained that he never felt welcomed and it was clear from the start that his supervisor did not like him. He asserted that based on his race he was yelled at, his work was scrutinized, and he was criticized in front of his coworkers. Complainant asserted that he was treated differently than other employees. Complainant also indicated that although he knew that he had made some mistakes, he was not aware that he was going to be found unsuitable. Complainant was terminated during his probationary period.
On August 11, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him because of race (African-American) and subjected him to harassment from approximately from November 2010 through July 11, 2011 when:
(a) His work performance was overly criticized;
(b) He was subjected to unprofessional and inappropriate comments;
(c) He was humiliated in front of his teammates;
(d) He was counseled on 30 occasions;
(e) He was reprimanded;
(f) He was accused of Time and Attendance fraud;
(g) He was singled out for taking an early break; and
(h) He was terminated from employment with the FBI for failure to meet suitability standards, effective July 26, 2011, and was subsequently subjected to awkward questions by a Special Agent while being escorted to his residence.
After 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 Administrative Judge. Complainant timely requested a hearing. The AJ assigned to the case granted the Agency's November 5, 2012, motion for a decision without a hearing without objection from Complainant and issued a decision without a hearing on September 22, 2014. The AJ found that Complainant did not establish a prima facie case of discrimination because he did not show that there were similarly situated co-workers who were treated differently or more favorably in the same or similar circumstances. Management indicated that Complainant had performance issues regarding his driving skills, radio communications, and with respect to the surveillance log.
Notwithstanding, with regard to incidents (a, b, and c), the record showed that Complainant was a new employee and his work as an Investigative Specialist was very important to the Agency accomplishing its mission; as such new employees were highly scrutinized. Management maintained that Complainant made repeated mistakes in the surveillance log which were brought to his attention so that he could improve. Complainant, however, continued to make the same mistakes. Management indicated that Complainant failed to show a strong desire to improve after he was made aware that he was making errors. The AJ found that Complainant did not show that there were other probationary employees who made repeated errors of a serious nature but were not reprimanded, yelled at or terminated.
Regarding incidents (d and e), the AJ found that the evidence showed that management was hard on all employees - especially probationary employees. The record also showed that management felt that Complainant displayed serious lapses in judgment and responsibility regarding his job duties and for that reason he was counseled and reprimanded. The AJ found that there was no evidence that his Supervisor or any other member of management made any statements about Complainant's race or singled him out for harsher treatment due to his race.
With regard to incidents (f and g), the record showed that Complainant was asked to correct his time sheet on several occasions to reflect sick leave that he had taken. After four weeks of no action being taken by Complainant, his supervisor reminded him that he could be charged with fraud with regard to his time and attendance, if he did not take care of the matter. Management maintained that it had no information that Complainant was singled out for taking an early break.
Finally, regarding incident h, the evidence showed that Complainant was terminated from his position after repeated attempts to improve his performance with counseling and training failed. Complainant was questioned about his personal firearm after his termination while being provided a ride to his home by FBI Agents. According to Complainant, he felt like a criminal. The Agency maintained that it took precautions when terminating Complainant because management was not sure how he would react because it was known that he owned firearms. In the past, management indicated, employees had reacted badly in similar situations; therefore, efforts were made to establish the safest possible scenario for everyone. The AJ determined that Complainant did not provide any evidence which suggested that his race was a factor with regard to these matters.
With regard to Complainant's hostile work environment claim, the AJ found that the incidents cited were not severe or pervasive enough to establish a hostile work environment, and that Title VII was not a civility code.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant did not establish that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant maintains that he disagrees with the AJ's findings. He indicates that after his case was in the system for years it was decided by a new AJ and he would like another look at his case.
In response, the Agency contends that Complainant provided no evidence which suggests that his race was a factor with regard to his termination. Further, the Agency asserts that Complainant was not subjected to a hostile work environment and that his complaints amount to no more than normal interpersonal office relations.
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").
ANALYSIS AND FINDINGS
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). We find that all of the requirements for a decision without a hearing were met. We also find that there are no material facts at issue and therefore a decision without a hearing was properly made.
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that even if we assume arguendo that Complainant established a prima facie case of race discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions namely, that Complainant was ultimately terminated from his position because he repeatedly made mistakes and did not improve after counseling and training were provided. Complainant did not deny that he made multiple mistakes. There is also no persuasive evidence that his performance improved significantly. Complainant also did not demonstrate that other probationary employees, not of his race, were treated more favorably with regard to management pointing out their mistakes. Accordingly, we find that Complainant did not show that the Agency's reasons were pretext for discrimination.
Further, we find that Complainant also did not demonstrate that he was subjected to a hostile work environment. We note, that Complainant indicates that he was not welcomed and that he was treated as an outsider. While this is unfortunate, Complainant did not establish that his treatment was related to his race. We find that the incidents complained of by Complainant appear to be normal work related interactions regarding his performance in a new position and management's reaction to that performance. Even when considering all of Complainant's allegations, we find that the incidents were not severe or pervasive enough to establish a hostile work environment. The Commission has long held that an Agency has broad discretion in terminating an employee during their probationary period as long as it is not for discriminatory reasons. In the instant case, we find that the AJ properly found that Complainant did not demonstrate that he was subjected to race discrimination or hostile work environment.
CONCLUSION
Accordingly, we AFFIRM the Agency's final order which found that Complainant did not demonstrate that he was subjected to discrimination or a hostile work environment.
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
__4/12/17________________
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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