0120120954
06-18-2012
William E. Campbell, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
William E. Campbell,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120120954
Hearing No. 570-2009-00835X
Agency No. ARBELVOIR08APR01427
DECISION
On December 22, 2011, Complainant filed an appeal from the Agency's November 21, 2011, 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 deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mechanical Engineer at the Agency's Army Command and Control Directorate, Army Power Division facility in Fort Belvoir, Virginia. Complainant indicated that he had been with the Agency since 1987 holding multiple positions on several teams within the Agency. He had been commended for his years of employment. However he believed he had been subjected to discrimination despite his employment history with the Agency.
On June 18, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Black), age (46), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 when:
1. On March 3, 2008, Complainant became aware that he was not selected for a temporary promotion to either a team leader position, or a branch chief position, at the Agency's Communications and Electronics Research Development and Engineering Center.
2. Complainant was not selected as a volunteer for early Aberdeen Proving Ground (APG) moves.
3. Hew subjected to reorganizations and capricious management decisions which led to unequal opportunities.
4. The Agency continued to use the term, "sexual assault" in correspondence.
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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing.
In his motion dated November 8, 2009, Complainant asked the AJ to amend the complaint to include a series of additional events. The first event listed occurred in October 2006 when he was not selected for the position of Chief Engineer. Complainant also raised a series of events from November 2008 through October 2009 when he was not selected for assignments to a variety of positions including the Program manager for Mobile Electric Power, the Branch Chief for the Power Generation and Alternative Energy Branch, Supervisory Engineering Chief position for the Environmental Control Engineering Support Branch, three Team Leader positions one of which was in a different divisions. In addition to the non-selections, Complainant indicated that management created a hostile work environment when they made reference to a "sexual assault" and threatened him with insubordination. As such, Complainant asserted that management's arbitrary and capricious reorganizations and unchecked decisions have led to a hostile work environment for Complainant based on his race, age and prior protected activity.
On February 1, 2010, the Agency filed its motions in opposition to Complainant's amendment and requesting for a decision without a hearing. The Agency noted that several of the claims raised by Complainant were untimely. The Agency also indicated that Complainant's claim of denial of Team Leader is the same claim raised in the instant complaint. In addition, the Agency indicated that Complainant's claim regarding a "sexual assault" was raised in this complaint. The Agency also argued that this was in connection with its internal investigation into a co-worker's claim regarding inappropriate comments in the workplace. Therefore, the Agency asserted that the claim regarding the reference to a "sexual assault" fails to state a claim. Further, the Agency noted that Complainant failed to show how the non-selections constituted a claim of harassment in that Complainant did not assert a pattern to establish a hostile work environment. Finally, the Agency argued that the claim of the "arbitrary and capricious reorganizations" failed to state a claim. Complainant failed to show how he was harmed by the reorganizations or that the reorganizations created a hostile work environment. Therefore, the Agency asked that the AJ deny Complainant's amendment.
The Agency, on the same day, filed a motion for summary judgment. The Agency argued that there were no material facts in dispute. Further, the AJ asserted that it had provided legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were pretext for discrimination based on his race, age and/or prior EEO activity. Complainant failed to respond to the Agency's motion.
The AJ issued her decision without a hearing on November 2, 2011. In her decision, the AJ found that there were no material facts in dispute. The AJ addressed Complainant's request to amend his complaint. The AJ noted that several of the claims raised by Complainant were untimely raised with the AJ. As to Complainant's claim of non-selection for the Team Leader position, the AJ found that Complainant failed to demonstrate that these events are sufficiently like or related to the claims raised in the instant complaint. The AJ noted that Complainant failed to assert that the non-selections were made by the same selecting officials as the matters before her. Finally, as to Complainant's claim that the Agency's actions were "arbitrary and capricious," the AJ noted that it was the same claim already raised in the instant matter. As such, the AJ found this claim to be redundant. Accordingly, the AJ denied Complainant's motion to amend the complaint.
The AJ then addressed the instant complaint. The AJ found that the Agency articulated legitimate, non-discriminatory reasons for its actions and that Complainant failed to show that those reasons were pretext. As to claim (1), the AJ determined that management provided reasons for its selections for the Team Leader positions, namely that the selectees were already experienced in the Power Generation branch. The Agency noted that Complainant was not working in the Power Generation branch and that this division is very different from the functional unit where Complainant was assigned. The AJ then found that Complainant failed to establish that the Agency's reasons were pretext. Complainant merely asserted that is years of experience made him far superior to the selectees. The AJ determined that Complainant did not show that his experience made him plainly superior to the selectees. Further, Complainant asserted that there were very few African-American employees with the Agency. However, the AJ noted that assertion alone did not show that the Agency's action constituted discrimination.
As to claim (2) regarding the move to the APG, the Agency did not select Complainant for the transfer because the business area that moved did not match Complainant's unit or position. Complainant attempted to show that a comparator was selected for the transfer. The Agency indicated that the comparator's position was closely related to the Fuel Cell business area which moved to the APG. As such, the AJ determined that Complainant did not show that the Agency's reason for denying his request to move was discriminatory.
As to the use of the term "sexual assault" in correspondence as alleged in claim (3), the AJ determined that the matter should have been dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The AJ stated that the Agency was conducting an internal investigation in which correspondence from the investigation included the phrase "sexual assault." The AJ determined that Complainant was using the EEO process to attack the internal investigation by the Agency into a complaint raised by a co-worker against Complainant. As such, the AJ found that Complainant failed to state a claim. Accordingly, the AJ granted the Agency's motion for summary judgment in its favor.
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 filed the instant appeal. Complainant alleged that the AJ improperly denied his motion to amend. Further, Complainant asked that the Commission find in his favor.
ANALYSIS AND FINDINGS
As an initial matter, the Commission addresses the AJ's decision to deny Complainant's motion to amend the complaint. Complainant moved to include a series of events which occurred from 2006 to 2009. The events raised by Complainant involved additional non-selections and other "arbitrary and capricious" management actions. Complainant asserted that the events raised constituted additional events in support of his claim of a hostile work environment. We note that Complainant only provided his bald assertion that the events were connected to his claim of harassment. Without any additional evidence or support, we cannot find that these discrete acts constituted a claim of harassment. As such, we determine that the AJ appropriately denied Complainant's motion to amend.
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, at Chapter 9, � VI.B. (November 9, 1999) (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). 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. 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. The record is adequately developed and there are no disputes of material fact. As such, the Commission turns to the AJ's finding of no discrimination.
We note that the AJ found that claim (4) failed to state a claim and dismissed it pursuant to 29 C.F.R. � 1614.107(a)(1). The AJ's decision did not directly address claim (3), however, the Commission finds that this claim should also have been dismissed for failure to state a claim.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). In claim (3), Complainant asserted that the Agency made "arbitrary and capricious" decisions regarding its reorganization resulting in unequal opportunities. We note that Complainant has not shown how he was specifically discriminated against with respect to a term, condition or privilege of employment. Further, the Commission finds that Complainant's complaint is a generalized grievance and, therefore, fails to state a claim. Complainant cannot pursue a generalized grievance that members of one protected group are afforded benefits not offered to other protected groups, unless he further alleges some specific injury to him as a result of the alleged discriminatory practice. See Warth v. Seldin, 422 U.S. 490, 499 (1975); Crandall v. Dep't of Veterans Affairs, EEOC Request No. 05970508 (Sept. 11, 1997) (claim that nurse practitioners in one unit received more favorable treatment than nurse practitioners in other units was a generalized grievance); Rodriguez v. Dep't of the Treasury, EEOC Appeal No. 01970736 (Aug. 28, 1997) (claim that there was an imbalance in favoring of African-Americans, against Hispanics, in development and promotion opportunities was a generalized grievance purportedly shared by all Hispanic co-workers and therefore failed to state a claim).
As for claim (4), Complainant alleged that he was subjected to discrimination when the Agency used the term "sexual assault" in correspondence. The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to have raised his challenges to actions which occurred during the internal investigation was the investigation itself. As such, we affirm the dismissal of this claim.
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, we find that the AJ correctly held that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Further, the record supports the AJ determination that Complainant failed to show that the Agency's reasons were pretext for discrimination. As such, we conclude that the AJ properly found no discrimination with respect to claims (1) and (2).
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 decision adopting the AJ's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 (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 (Z0610)
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
June 18, 2012
__________________
Date
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0120120954
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120954