0120173067
01-25-2018
Ward B,1 Complainant, v. Ryan D. McCarthy, Acting Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ward B,1
Complainant,
v.
Ryan D. McCarthy,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120173067
Hearing No. 451-2013-00179X
Agency No. ARFTSAM12MAY02279
DECISION
On September 12, 2017, 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 June 20, 2017, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant for the position of Human Resource Assistant, GS-0203-05 at the Agency's Operations Division, U.S. Army Recruiting Battalion in Houston, Texas. On March 9, 2012, the Agency extended a tentative job offer to Complainant contingent upon meeting eligibility qualifications, verification of documents, and obtaining a security clearance. On April 5, 2012, the Agency sent Complainant a letter stating that the tentative job offer previously extended to him was withdrawn. The reason stated for the withdrawal was Complainant's suitability for the position.
On July 18, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), disability (degenerative joint disease), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964
Section 501 of the Rehabilitation Act of 1973 when, on April 11, 2012, management withdrew the tentative job offer for the Human Resource Assistant position.
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. When the Complainant did not object, the AJ assigned to the case granted the Agency's June 23, 2013, motion for a decision without a hearing and issued a decision without a hearing on May 19, 2017.
The AJ stated the material facts supported by the record which were not in dispute. The AJ noted that the prior to the rescission of the job offer, Complainant provided the Agency two signed "Declarations of Federal Employment" on March 11, 2012 and March 15, 2012. Complainant stated that his discharge from the U.S. Marine Corps was "Honorable." Complainant signed the forms certifying the veracity and accuracy of all his responses. However, in the Certificate of Release or Discharge from Active Duty provided by Complainant, it stated that he was discharged from the Marine Corps in 1993, with "General Under Honorable Conditions" type of discharge for "conduct triable by court-martial." The AJ noted that it was not only the discrepancy but that Complainant knowingly falsified information required by the Agency.
The AJ found that the Agency contacted Complainant multiple times regarding gathering information as to the discharge as Complainant had provided this information on his job application. The AJ reviewed the fact-finding conference conducted by the Agency. She noted that Complainant was evasive in responding to questions about the information he provided the Agency to refusing to answer questions. Complainant continued to assert that his discharge was "honorable." However, the Agency received a copy of Complainant's discharge file from the Marine Corps. It revealed that Complainant was charged with five different specifications of various types of misconduct in 1992 including failure to obey lawful orders, disrespectful language and deportment, assault, and threat to injure. In addition, the file included a request from Complainant's Commanding General requesting an "administrative separation with general characterization of service." In essence, Complainant understood that he would be administratively discharged rather than being tried by court-martial.
The AJ then turned to Complainant's failure to be forthcoming about another issue. In his "Declarations of Federal Employment" dated March 11, 2012, Complainant indicated that he had been convicted, imprisoned, held on probation or parole in the last 10 years. Complainant was required to provide disposition and explanation of the offense charged. Complainant indicated that he was wrongfully arrested for Driving with Under the Influence (DUI) but did not identify the disposition of the DUI arrest. The Agency contacted Complainant to provide more detail regarding the DUI arrest but Complainant responded that the Agency "didn't need to know." Complainant was called several times to provide the Agency with the disposition of the DUI arrest. Complainant subsequently provided the Agency with another Declaration stating that the DUI was disposed with the "Alford Plea" with "17 days workhouse." The AJ also indicated that the position in question required a "Secret Security Clearance." The Deciding Official noted that the reluctance to provide documents could create a problem for him obtaining a security clearance.
Based on these facts, the AJ issued her findings and analysis. The AJ held that the person the Agency hired in place of Complainant was also a disabled African American. Further, the AJ noted that Complainant had not indicated that the Agency was aware of his disability. The AJ then turned to the Agency's legitimate, nondiscriminatory reason for rescinding the offer. The AJ held that the Deciding Official noted that Complainant began to act belligerent in response to the Agency's request for additional information and was concerned that Complainant would bring hostility to the work environment.
Finding that the Agency provided legitimate, nondiscriminatory reasons for its decision to rescind the offer, the AJ turned to Complainant to establish that the Agency's reasons were pretext for discrimination. The AJ found that Complainant intentionally provided false information in his employment application which became apparent in his Marine Corps discharge file. The AJ noted that Complainant alleged that the Agency's investigation into his complaint was not to his liking. Complainant claimed that the Investigator was biased and prejudiced in the Agency's favor. The AJ held that Complainant failed to substantiate his claims of bias. The AJ concluded that Complainant did not establish that the Agency's reasons were pretext for discrimination based on his race, disability or in retaliation. Therefore, the AJ determined that Complainant did not show that he was subjected to unlawful discrimination.
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. This appeal followed.
On appeal, Complainant asserted that the AJ failed to engage in appropriate discovery and that the AJ should be recused from the matter. Complainant argued that the record had not been adequately developed for summary judgment. Complainant also claimed that the AJ's decision merely relied on the Agency's facts and analysis from its motion for summary judgment. As such, he believed the AJ's decision should be reversed. Further, Complainant claimed that the Agency improperly obtained his military records and that a "Special Master" should be assigned the matter at hand.
ANALYSIS AND FINDINGS
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.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. Complainant argued that discovery had been truncated. However, Complainant failed to show what was missing from the record. In addition, Complainant failed to show that the AJ's statement of material facts was in dispute. As such, we find that the record is adequately developed and there are no disputes of material fact.
Complainant alleged disparate treatment when his tentative job offer was rescinded based on his race, disability, and/or prior protected activity. A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). 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). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its rescission decision. The record showed that Complainant was required to provide the Agency to complete the hiring process. The record clearly indicated that Complainant was not forthcoming with his military discharge nor with his DUI arrest. The Deciding Official noted that Complainant became belligerent with Agency officials. Based on the reluctance to provide documentation and Complainant's hostility towards the Human Resources staff, the Deciding Official determined to withdraw the job offer. Complainant has failed to show that the Agency's reasons were pretext for discrimination.
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 action implementing the AJ's decision without a hearing.
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
January 25, 2018
__________________
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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