0120070563
04-09-2009
Walter S. Temple, Complainant, v. Steven C. Preston, Administrator, Small Business Administration, Agency.
Walter S. Temple,
Complainant,
v.
Steven C. Preston,
Administrator,
Small Business Administration,
Agency.
Appeal No. 0120070563
Hearing No. 570200600374X
Agency No. 0904023
DECISION
On November 8, 2006, complainant filed an appeal from the agency's October
13, 2006 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission AFFIRMS the agency's final
order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Student Trainee in the agency's Office of the Executive Secretariat
in Washington, D.C. On September 14, 2004, complainant filed an EEO
complaint alleging that he was discriminated against on the bases of race
(Caucasian), and sex (male) when:
1. on June 25, 2004, he was terminated from employment as
Correspondence Specialist, GS-0399-7 (Student Trainee);
2. from May 2004 through June 23, 2004, he was treated different
than his female colleagues when management refused to meet with him to
discuss departmental matters;
3. in May 2004, he was subjected to sexual harassment by his
supervisor when he was asked personal questions, his supervisor sat and
kneeled on his desk, and he was pressured to purchased raffle tickets
from the Human Rights Campaign; and
4. in mid-May 2004, he was subjected to harassment when management
made "catty" remarks about his political affiliation and he was "given
a hard time" about his academic schedule.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. On August 29, 2006, the agency filed its Motion for
Findings and Conclusions without a Hearing, to which complainant responded
on September 14, 2006. On September 26, 2006, the AJ assigned to the
case issued a decision without a hearing finding no discrimination.
In his decision, the AJ found that complainant failed to establish a
prima facie case of race or sex discrimination when he was terminated
from his position because he could not identify any similarly-situated
individuals who were treated more favorably. The AJ further found
that complainant failed to dispute the agency's reason for its action;
namely, that the Director of the Office of the Executive Secretariat
(Director) decided not to continue to employ student trainees in the
Office of Executive Secretariat. The Director based his decision on
a finding that the Office had a high delinquency response rate, and
a lack of responsiveness to Congressional and White House inquiries.
The Director decided to eliminate the student trainee positions, and
replace them with permanent Correspondence Specialist positions. The AJ
found complainant failed to produce evidence of pretext in that both
he and another student trainee, who was outside complainant's protected
classes, were terminated from the position. Complainant applied for the
permanent position, but was not selected. The comparative was selected
for another job with the agency.
Complainant also alleged that the Director subjected him to sex-based and
non-sex-based harassment (Issues 2, 3 and 4 above). The AJ found that the
conduct alleged did not rise to the level of severe and pervasive conduct.
The AJ noted also that complainant's claim that the Director rubbed
up against him on numerous occasions was not timely raised with an EEO
Counselor. Further, the AJ found that complainant failed to show that he
was targeted because of his race and/or sex, and failed to complain about
the harassment until he was terminated. The AJ found that, accordingly,
there was no way to impute liability to the agency.
On October 13, 2006, the agency issued a final order adopting the
AJ's finding that complainant failed to prove that he was subjected to
discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the named comparative was treated
more favorably because she was permitted to attend meetings from which
he was excluded, and because she was permitted the opportunity to find
another job with the agency. Complainant notes that the agency had the
option of converting the student trainee position to a career position
upon complainant's graduation, but instead chose to fill the position
competitively. Complainant also maintains that he has raised sufficient
facts to establish a prima facie case of harassment based on sex.
Specifically, he contends that he was terminated when he rebuffed the
Director's advances.
In response to complainant's appeal, the agency contends that complainant
failed to establish a prima facie case of race or sex discrimination when
he was terminated, because the other student trainee was also terminated.
The agency argues that complainant failed to assert facts which,
if true, could be considered hostile or offensive. Furthermore, the
agency argues that complainant failed to report the alleged harassment.
Finally, the agency argues that complainant failed to establish that
the agency's reasons for its actions were a pretext for discrimination.
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 EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)
(providing that an administrative judge's "decision to issue a decision
without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will 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. Department of Defense, 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 the instant case, we find the AJ properly issued his decision without
a hearing. Significantly, complainant fails to show that the agency's
articulated reason for his termination was a pretext for discrimination.
The agency articulated that all student trainees in the Office of
Executive Secretariat were terminated when the agency decided to eliminate
the trainee positions. With regard to his harassment claim, we concur
with the AJ's finding that complainant's claim of hostile work environment
must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc.,
EEOC Notice No. 915.002 (March 8, 1994). A prima facie case of hostile
work environment is precluded based on our finding that complainant
failed to establish that any of the actions taken by the agency were
motivated by discriminatory or retaliatory animus. See Oakley v. United
States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000).
We find that the AJ's findings are supported by the record, and we
discern no basis upon which to disturb the AJ's decision. Accordingly,
we affirm the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 9-18 (November 9, 1999). 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 (S0408)
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 (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 9, 2009
Date
2
0120070563
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120070563
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# 0120070563