Wilmer M.,1 Complainant,v.Loretta E. Lynch, Attorney General, Department of Justice (Bureau of Alcohol, Tobacco, Firearms & Explosives), Agency.

Equal Employment Opportunity Commission

Apr 5, 2016

0120143017 (E.E.O.C. Apr. 5, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Wilmer M.,1
Complainant,

v.

Loretta E. Lynch,
Attorney General,
Department of Justice
(Bureau of Alcohol, Tobacco, Firearms & Explosives),
Agency.

Appeal No. 0120143017

Hearing No. 410-2013-00292X

Agency No. ATF-2012-01109

DECISION

On September 1, 2014, Complainant filed an appeal from the Agency’s June 18, 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 finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Criminal
Investigator at the Agency’s facility in Atlanta, Georgia. On December 5, 2012, Complainant
filed an EEO complaint alleging that the Agency subjected him to harassment and
discriminated against him on the bases of his race (African-American), religion (Seventh Day
Adventist), and in reprisal for prior protected EEO activity when: (1) on July 13, 2012, the
Assistant Special Agent in Charge (ASAC) denied him the opportunity to attend and present at
the Advanced Complex Training Undercover/Home Invasion School (ACT School) in Chicago,
Illinois; and (2) on August 22, 2012, the Special Agent in Charge (SAC) and the ASAC
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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discouraged the Special Operations Division from allowing Complainant to participate and
instruct in the ACT School in Atlanta, Georgia.

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.
The AJ found that, after viewing the evidence in a light most favorable to Complainant, a
decision without a hearing was appropriate as there were no genuine issues of material fact in
dispute. The AJ issued a decision without a hearing on June 12, 2014, finding no
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. On
appeal, Complainant argues that the AJ erred in issuing a decision without a hearing and
reiterates his contention that he was subjected to unlawful discrimination.

ANALYSIS AND FINDINGS

As an initial matter we note that, as this is an appeal from a final decision issued without a
hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency’s decision is subject to de novo
review by the Commission. 29 C.F.R. § 1614.405(a). 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 102, 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, it is not appropriate for an AJ to issue a decision without a hearing. In the context of
an administrative proceeding, an AJ may properly issue a decision without a hearing only upon
a determination that the record has been adequately developed for summary disposition. Petty
v. Defense Security Service, EEOC Appeal No. 01A24206 (July 11, 2003); Murphy v. Dept.
of the Army, EEOC Appeal No. 01A04099 (July 11, 2003).

After a careful review of the record, the Commission finds that a decision without a hearing
was appropriate, as no genuine dispute of material fact exists. To prevail in a disparate
treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant

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must initially establish a prima facie case by demonstrating that he was subjected to an adverse
employment action under circumstances that would support an inference of discrimination.
Furnco Construction 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, 411 U.S. at 804
n. 14. The burden then shifts to the Agency to articulate a legitimate, non-discriminatory
reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence,
that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133 (2000).

Here, we concur with the AJ’s finding that assuming, arguendo, Complainant established a
prima facie case of race, religion, and reprisal discrimination, the Agency nonetheless
articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the record shows
that in early June, 2012, the training specialist sent an email inviting numerous employees to
participate as trainers at an ACT school event in Chicago, Illinois, scheduled for July 2012.
Complainant was among the employees invited to participate by the training specialist due to
his involvement in an investigation referred to as ATF Blaze. The record further shows that
when the ASAC became aware of the email, he questioned why the supervisor of the ATF
Blaze investigation was not invited to present and he also objected to the Agency expending
resources to send three employees to the Chicago training, particularly when he did not believe
Complainant had acted in a primary role in the investigation. Although Complainant initially
received approval to attend the Chicago training, he was later informed that budgetary
restrictions prevented the Agency from sending more than two trainers to the event to present
on ATF Blaze. The ASAC ultimately selected the two employees he believed were most
actively involved in the investigation. Complainant, because he was not “an essential part in
presenting the overall case study”, was not permitted to attend the Chicago training. We find
that Complainant failed to proffer any evidence to show that the Agency’s actions in not
permitting him to attend the ACT school in Chicago were motivated by discriminatory or
retaliatory animus or that its articulated reasons were pretextual.

Next, with respect to the ACT school in Atlanta, the record shows that in August 2012,
Complainant again received an email inviting him to serve as a presenter at a training event
scheduled for September 2012. On this occasion, Complainant received approval from the
ASAC to participate in the training. The record shows, however, that the organizers of the
ACT school in Atlanta later decided that they would not be including a presentation on the
ATF Blaze investigation because of scheduling conflicts. The record shows that no one from
Complainant’s facility attended this Atlanta training event. As such, we find that Complainant
failed to show that he was subjected to unlawful discrimination when he was not permitted to
attend the Atlanta ACT school.

Finally, insofar as Complainant is alleging that the claims addressed above constitute
harassment, the Commission finds that since he failed to show that the actions occurred as
alleged or were motivated by discriminatory animus toward his protected classes, he
necessarily also failed to establish that he was subjected to a discriminatory hostile work

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environment. See Bennett v. Department of the Navy, EEOC Request No. 05980746
(September 19, 2000).

CONCLUSION

We find that viewing the record evidence in a light most favorable to Complainant, there are
no genuine issues of material fact. We further find that the AJ appropriately issued a decision
without a hearing finding no discrimination. Therefore, we discern no basis to disturb the AJ’s
decision and the Agency’s final order is AFFIRMED.

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

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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

April 5, 2016
Date