0120132046
02-05-2016
Wilfredo B.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Wilfredo B.,1
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120132046
Hearing No. 570-2009-00164X
Agency No. HS-08-TSA-002139
DECISION
Complainant timely filed an appeal from the Agency's 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are: (1) whether there are genuine issues of material fact that require a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ); (2) whether the AJ properly found that the Complainant did not establish that the Agency's proffered reasons for its actions were pretext for discrimination; and (3) whether the AJ properly found that Complainant had not been subjected to a hostile work environment as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Principal Security Inspector (PSI) in the Agency's Transportation Sector Network Management (TSNM), Office of Charter and Air Cargo Operations, in Arlington, Virginia.
On February 9, 2006, and March 10, 2008, Complainant filed EEO complaints, as amended, alleging that the Agency discriminated against him on the bases of race (Hispanic),2 national origin (Colombia), age (63), and reprisal for prior protected EEO activity when:
1. He received a Letter of Reprimand (LOR) for alleged inappropriate conduct and misuse of government resources when he developed and distributed materials of a purported defamatory nature.
2. Between December 2002 and December 2005 he was not selected for 90 positions with the Agency.3
3. He was subjected to harassment that created a hostile work environment. Examples of the hostile work environment included:
a) Between 2003 and February 2008, he was repeatedly denigrated during meetings and via e-mail in the presence or virtual presence of other managers;
b) From 2003 to the present, his written work products have been insulted by management;
c) From January 2003 to the present, his suggested improvements to security and cargo programs have been rejected by management;
d) In August 2005, he was instructed to utilize previous work, which was incomplete, and later was chastised and belittled;
e) In November 2005, his presentation to airport officials and employees was severely criticized;
f) On January 1, 2006, he was reassigned from his preferred assignment in Southeastern States and the Caribbean;
g) In April 2006, he was denied a performance award, a salary increase, and a bonus, unlike his colleagues;
h) On May 10, 2006, he was asked to provide a review of a new security program with short notice, and his supervisor rebuked and belittled him when discussing his work product;
i) In June 2006, he was denied two hours of compensatory time for working on his off day;
j) Between February and November 2007, his requests to work on an Alternative Work Schedule (AWS) were denied;
k) In July 2007 and January 2008, he was required to use leave without pay for visits to the doctor related to a workplace injury he received while working at another agency;
l) Between September 28, 2007 and November 19, 2007, he received e-mails which berated him and gave conflicting orders and direction;
m) In November 2007, he was denied seven hours of compensatory time or overtime for travel;
n) In November 2007 and previously, his supervisor delayed responding to his requests for annual leave for weeks and sometimes months;
o) In November 2007, he was denigrated for the amount of compensatory time he earned for work performed in 2003;
p) On November 18, 2007, he was ordered to halt his efforts to correct a security breach identified by the Federal Aviation Administration;
q) On November 29, 2007, he was denied an electronic version of his performance agreement despite repeated attempts to obtain it; and
r) On February 4, 2008, he was prevented from attending an important meeting directly related to his job performance.
4. Complainant was subjected to disparate treatment when:
a) On or about February 24, 2006, he applied and was not selected for the General Manager Cargo (SW-0340-03/03) position, Announcement Number TSA-TSES 06-07, located in Arlington, Virginia;
b) On or about February 23, 2006, he applied and was not selected for the General Manager, General Aviation (SW-0340-03303) position, Announcement Number TSA-TSES 06-08, located in Arlington, Virginia;
c) On or about September 1, 2006, he applied and was not selected for the Assistant Federal Security Director Operations (SV-301-K) position, Announcement Number TSA-06-1759, located in Miami, Florida;
d) On or about September 15, 2006, he applied and was not selected for the Transportation Security Specialist, Air Cargo Plans and Programs (SV- 1801-K) position, Announcement Number TSA-06-1891, located in Arlington Virginia;
e) On or about October 20, 2006, he applied and was not selected for the TSA Senior Leadership Development Program, Announcement Number TSASLDP-FS-120170;
f) On or about December 1, 2006, he applied and was not selected for the Supervisory Transportation Security Specialist (SV-1801-K) position, Announcement Number TSA-07-0140, located in Arlington, Virginia;
g) On or about December 26, 2006, he applied and was not selected for the Assistant Federal Security Director for Regulatory Inspections (SV-1801- K) position, Announcement Number TSA-07-204, located in Miami, Florida;
h) On or about March 5, 2007, he applied and was not selected for the General Manager, General Aviation (SV-0 340-02/02) position, Announcement Number TSA-TSES-07-09, located at TSA Headquarters;
i) On or about March 15, 2007, he was not selected as the Deputy Cargo Manager, whereas the successful incumbent was selected without competition;
j) On or about March 19, 2007, he applied and was not selected for the TSA Senior Leadership Development Program-2, Announcement Number TSA-SLDP2-PH131257;
k) On or about March 25, 2007, he applied and was not selected for the Supervisory Transportation Security Specialist Cargo (SV-1801-K) position, Announcement Number TSA-07-0445, located at TSA headquarters;
l) On or about March 25, 2007, he applied and was not selected for the Deputy Federal Security Director (SW-0340-03-03) position, Announcement Number TSA-TSES-07-6, located in Newark, New Jersey;
m) On or about March 27, 2007, he was not selected for any of the twelve (12) Senior Field Executive positions, whereas the successful incumbents were selected without competition;
n) On or about May 3, 2007, he applied and was not selected for the Supervisory Transportation Security Specialist Cargo (SV-1801-K) position, Announcement Number TSA-07-0537, located in Arlington, Virginia;
o) On or about May 21, 2007, he applied and was not selected for the Assistant Federal Security Director for Regulatory Inspection (SV-1801-K) position, Announcement Number TSA-07-0579, located in Louisville, Kentucky;
p) On or about October 2, 2007, he applied and was not selected for the Assistant Federal Security Director for Regulatory Inspection (SV-1801-K) position, Announcement Number TSA-07-0964, located in Orlando, Florida;
q) On or about December 17, 2007, he was not selected as a Senior Advisor to the Assistant Administrator, Transportation Sector Network Management, whereas the successful incumbent was selected without competition;
r) On or about February 6, 2008, Complainant applied and was not selected for the Assistant Federal Security Director (SV-0340-K) position, Announcement Number TRSA-08-0160, located in Carolina, Puerto Rico; and
s) On or about March 14, 2008, he applied and was not selected for the Federal Security Director (SV-0340-K) position, Announcement Number TSA-2008-0088, located in Moline, Illinois.
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 Complainant did not object in a timely manner, the AJ assigned to the case granted the Agency's motion for a decision without a hearing and issued a decision without a hearing on March 21, 2013, in the Agency's favor.4 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.
Specifically, the AJ noted that Complainant did not dispute the allegations against him in the LOR. The AJ further noted that numerous matters which Complainant claimed were harassment were nothing more than ordinary interactions in the workplace that did not amount to a hostile work environment. The AJ found that the unwelcome behavior in Complainant's work environment was insufficiently severe or pervasive to rise to a level that constituted hostile work environment harassment. The AJ additionally found that Complainant did not establish that any of the nonselections at issue were motivated by either discriminatory or retaliatory animus. The AJ noted that Hispanic candidates were selected for some of the vacancies at issue. The AJ also noted that other vacancies were filled by candidates in Complainant's age range and by candidates with prior protected EEO activity. The AJ found that Complainant failed show that any of the Agency's legitimate, nondiscriminatory reasons were pretext for discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant believes that the AJ was motivated to dispose of his case quickly due to the voluminous amount of documentation in the record. Complainant asserts that, at the previous AJ's instruction, he drafted a "Global Settlement" proposal for presentation to the Agency for settlement of the instant case as well as his other discrimination cases. Complainant asserts that the Agency ignored his settlement proposals, which he believes would have remedied the discrimination and harassment he suffered at the hands of the Agency. Complainant maintains that the AJ's March 21, 2013, decision without a hearing was erroneous. Complainant asserts that there are numerous genuine issues of material fact that have been ignored, and that the credibility of Agency management witnesses is at issue. Complainant indicates that he previously hired an effective EEO attorney who became severely ill and was unable to proceed with his case when the Agency filed its motion for summary judgment. Complainant states that he hired a second attorney who demanded too much money and did not respond to the Agency's motion for summary judgment. Complainant argues that the AJ was not aware of his first attorney's illness which was the reason he did not respond to the Agency's motion. Complainant maintains that he is not the only employee at the Agency who has been affected by the discriminatory actions of management. Complainant cites to a January 30, 2013, published article to support his claim that other employees were raising discriminatory issues similar to his. Complainant believes that the Agency has a reputation of "rampant" workplace favoritism, retaliation, hostile work environment, and bullying.
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 Chap. 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
AJ's issuance of a Decision without a Hearing
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 her 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).
After a review of the record, the Commission finds that the AJ's issuance of a decision without a hearing was appropriate. The record has been adequately developed, Complainant was given notice of the Agency's Motion to issue a Decision without a Hearing, he was given an opportunity to respond,5 and he had the opportunity to engage in discovery. We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in his favor, as explained below.
Disparate Treatment (Letter of Reprimand and Nonselections)
To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A complainant must initially establish a prima facie case by demonstrating that she 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, a complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. 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).
Upon review, we find that, assuming for the purpose of our analysis that Complainant established a prima facie case of discrimination on bases of race, national origin, age, and reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions. The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 254.
We find that Complainant has not established that that the Agency's legitimate, nondiscriminatory reasons were pretext for discrimination or were motivated by discriminatory and/or retaliatory animus. As the AJ also noted, Complainant did not dispute the allegations against him in the LOR. We note that Complainant specifically averred that he did, in fact, generate documentation to employees which criticized the Chief Operating Officer's Biography, as the LOR alleged. We further note that, for each vacancy and/or promotion at issue herein, there were many different management officials, employees, and panel members involved. Specifically, we note that a total of 29 employees submitted affidavits for the record, including selecting officials, employees, and panel members located at different Agency facilities throughout the country. However, no employee in the record corroborated Complainant's assertions regarding his claims of discrimination with regard to any of the vacancies at issue. In the record, Complainant asserted that his first-level supervisor (S1) purposefully interfered with his opportunity to be selected and/or promoted with respect to most, if not all, of the vacancies at issue. Notwithstanding, no employees averred that S1 had any involvement with many of the selections and/or promotions.
We additionally note that, although Complainant maintained that the Agency had been purposefully excluding Hispanic employees from management level positions, the Agency selected Hispanic candidates for Assistant Federal Security Director positions in Puerto Rico and Miami (claims 4(c) and 4 (r)). We remind Complainant that the non-moving party's opposition to a decision without a hearing must consist of more than mere unsupported broad allegations or denials; it must be supported by competent evidence setting forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e); Celotex Corp v. Catrett, 477 U.S. 317, 324, (1986). Thus, we find that, without more, Complainant's generalized unsupported allegations that S1, along with other management officials, had a history of discriminating against him and employees of the same protected classes to be insufficient to prove that the Agency's reasons were pretext for discrimination.
Hostile Work Environment Harassment.
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has stated that: "Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile environment harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance at 6.
Upon review, assuming Complainant's allegations are true, he has not established that he was subjected to unwelcome verbal or physical conduct rising to the level of a hostile work environment. We find that Complainant has not proven sufficiently severe or pervasive events to show that he was subjected to a hostile work environment. Although Complainant's work environment may not have been ideal, we do not find that it was hostile and/or abusive based on Complainant's protected bases. We note that not every unpleasant or undesirable action which occurs in the workplace constitutes an EEO violation. See Shealey v. EEOC, EEOC Appeal No. 0120070356 (Apr. 18, 2011) (citing Epps v. Dep't of Transp., EEOC Appeal No. 0120093688 (Dec. 19, 2009). Even assuming that the conduct alleged was sufficiently severe or pervasive to create a hostile work environment, we find that Complainant has not shown that any of the alleged incidents were motivated by discriminatory or retaliatory animus. We find that the Agency's actions toward Complainant here were ordinary workplace interactions, with no abusive conduct based on Complainant's protected classes.6
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that this case presented no genuine issues of material fact that required a hearing; that Complainant did not establish that the Agency's proffered explanations for its actions were pretext for unlawful discrimination; and that Complainant did not establish that he was subjected to a hostile work environment as alleged. Accordingly, we AFFIRM the Agency's final order.
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. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
February 5, 2016
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 Commission views "Hispanic" as a national origin designation and not as a racial designation. Morales v. Dep't of the Navy, EEOC Petition No. 03930096 (Dec. 10, 1993).
3 On June 6, 2006, the Agency issued a partial acceptance/dismissal of Complainant's complaint. Therein, the Agency dismissed claim 2 for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1). Complainant does not contest the Agency's dismissal of claim 2; therefore, we exercise our discretion not to address the Agency's dismissal of this claim herein. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, Sec. IV.A. (Aug. 5, 2015).
4 Complainant's case was originally assigned to a previous AJ in 2011 who held the case in abeyance while Complainant was recovering from cancer, among other conditions. In 2013, Complainant's case was reassigned to the AJ herein who rendered the instant decision in favor of the Agency.
5 On appeal, Complainant argues that he did not respond to the Agency's Motion to issue a Decision without a Hearing due to his second attorney's negligence. The Commission has held, however, that the negligence of an attorney or his staff is not sufficient reason to extend time limitations. See McGuire v. U.S. Postal Serv., EEOC Appeal No. 01A54834 (Dec. 22, 2005).
6 We note that on appeal Complainant asserts the Agency ignored his settlement offer. The Commission finds, however, that an Agency's decision whether to offer to settle a complaint and, if so, what terms and conditions to include in an offer, are actions wholly within the discretion of the Agency.
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