0120071895
12-03-2009
Yasuo Toyota, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Yasuo Toyota,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120071895
Hearing No. 370-05-00493X
Agency No. ARZAMA04NOV07453
DECISION
On March 7, 2007, complainant filed an appeal from the agency's February
2, 2007 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 appeal is deemed timely and 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 Supervisory Information Technology Specialist at the agency's 9th
Theater Support Command at Camp Zama, Japan. In July 2003, complainant
was accused of sex-based harassment by three of his female subordinates.
Complainant's supervisor (S1) issued complainant a "no-contact" order and
on July 15, 2003, ordered an investigation. During the investigation,
irregularities were discovered concerning complainant's management
of information technology matters, possible conflicts of interest,
and improper use of an official government procurement or purchasing
credit card. S1 forwarded these matters to the agency's Criminal
Investigation Division to determine whether complainant had engaged in
any criminal activity. Complainant was cleared of any criminal activity,
however the investigation did uncover that complainant had misused his
official government purchase card in violation of agency policies and
procedures, had engaged in ethically questionable practices, and had
fostered an adverse working environment. On October 31, 2003, S1 placed
complainant on paid administrative leave pending the outcome of the
investigation and a determination of appropriate action. As a result
of being placed on administrative leave, complainant was removed from
the Priority Placement Program - a program designed to assist employees
locate vacant positions they may wish to be transferred or re-assigned.
On May 18, 2004, S1 issued a notice proposing to remove complainant
based upon the findings of the investigation. On November 19, 2004,
complainant's performance evaluation reflected the findings of the
investigation and recommended that complainant needed improvement.
The deciding official (DO) sustained the findings of the investigation,
but vacated the proposal to remove complainant in favor of re-assigning
him to a different position with limited responsibilities.
On January 5, 2005, complainant filed an EEO complaint alleging that
he was subjected to a hostile work environment discriminated against on
the bases of race (Asian) national origin (Japanese), and age (67) when:
1. On July 15, 2003, S1 instigated an investigation after one of
complainant's subordinates alleged complainant created a hostile work
environment against her and made illegal government purchases;
2. On October 31, 2003, S1 placed complainant on paid administrative
leave, removed complainant from the Priority Placement Program, and
instructed complainant not to have any contact with his accusers;
3. On May 18, 2004, S1 issued complainant a Notice of Proposed Removal;
4. On October 15, 2004, DO issued a Final Decision on the Proposed Removal
in which he re-assigned complainant to a different position; and,
5. On November 19, 2004, complainant received a rating of "Needs
Improvement" on his performance evaluation.
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. Over the complainant's objections, the AJ
assigned to the case granted the agency's July 18, 2006 motion for a
decision without a hearing and issued a decision without a hearing on
January 19, 2007. At the outset, the AJ found that complainant's claims
were untimely. The AJ found that the investigation into complainant's
alleged misconduct was initiated in July 2003, complainant was ordered
to not have any contact with his staff on July 11, 2003, complainant
was placed on administrative leave on October 31, 2003, and complainant
was issued the removal notice on May 18, 2004. The AJ found that since
complainant did not contact an EEO counselor until November 24, 2004,
the 45-day time limit barred these claims. The AJ then assumed arguendo
that the claims were timely and found that the agency had articulated
legitimate, nondiscriminatory reasons for its actions. The AJ found
that the agency took prompt and reasonable action when allegations
of harassment by complainant were reported. The AJ found that there
was no evidence that the agency's investigation into the harassment
allegations against complainant was accomplished with discriminatory
intent. Likewise, the AJ found that there was no evidence that the
investigators, nor complainant's subordinates, harbored any discriminatory
animus against complainant. The AJ found that complainant failed to
produce any evidence establishing the agency's reasons as pretextual.
Accordingly, the AJ found that there was no material fact at issue
and that complainant had not been discriminated against as alleged.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that he was subjected to discrimination.
CONTENTIONS ON APPEAL
On appeal, complainant claims that the AJ erred in determining that
his claim was untimely. Complainant alleges that he could not have
complained about the proposed removal action of May 18, 2004 until
a decision was made on the proposed removal on October 15, 2004.
Further, complainant alleges that the AJ did not consider his attempts to
informally resolve his complaint. Complainant contends that he was told
by agency officials that he could not take any action regarding being
placed on administrative leave until a decision had been made on his
proposed removal. Additionally, complainant asserts that S1's reasons
for the adverse action taken against him were false as S1's testimony was
contradicted by others. Finally, complainant alleges that the AJ failed
to address the issue of the excessiveness of the agency's discipline.
In response, initially, the agency argues that most of the issues
raised by complainant are time-barred. Next, the agency asserts that
complainant failed to produce any evidence supporting his claim that
the agency advised him to wait before filing a complaint. Further,
the agency affirms that the AJ did not err in considering the punishment
imposed on complainant since the only action DO took in this case was to
separate complainant from the female employees he allegedly harassed.
The agency argues that this was an administrative action well within
the discretion of a prudent manager. Finally, the agency notes that
complainant failed to point to any evidence in the record that the
AJ may have overlooked that would support his claim that these events
occurred due to discrimination based on his race, national origin or age.
Accordingly, the agency requests that we affirm the final order.
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).
Harassment/Hostile Work Environment
It is well-settled that harassment of an employee that would not occur but
for the employee's race, color, sex, national origin, age, disability,
or religion is unlawful, if it is sufficiently severe or pervasive.
Hurston v. United States Postal Service, Appeal No. 01986458 (January 19,
2001), (citing, Wibstad v. United States Postal Service, EEOC Appeal
No. 01972699 (August 14, 1998)). To establish a prima facie case of
hostile work environment harassment, a complainant must show that (1)
s/he belongs to a statutorily protected class; (2) s/he was subjected to
harassment in the form of unwelcome verbal or physical conduct because
of her/his protected class; (3) the harassment complained of was based
on her/his statutorily protected class; and (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. See 29 C.F.R. �
1604.11; Davis v. Army, EEOC Appeal Nos. 01A24469, 01A20558 (November 14,
2003).
A complainant must show that the actions complained of were taken
because of or based on her/his protected status and are sufficiently
patterned or pervasive; usually, a single incident or a group of isolated,
discrete incidents will not be regarded as discriminatory harassment.
Frye v. Department of Labor, EEOC Request No. 05950152 (February 8, 1996);
Backo v. United States Postal Service, EEOC Request No. 05960227 (June 10,
1996); see also Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986).
An abusive or hostile work environment exists "when the workplace is
permeated with discriminatory intimidation, ridicule and insult that is
sufficiently severe or pervasive to alter the condition of the victim's
employment." Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).
An alteration to an employee's working conditions exists if a tangible,
discrete employment action is taken, e.g., hiring, firing, transfer,
promotion, non-selection, or the agency's actions were sufficiently
severe and/or pervasive to create a hostile work environment.
At the outset, we disagree with the AJ that complainant's claims
are untimely. A fair reading of the record reveals that complainant
is alleging ongoing harassment. The Supreme Court has held that a
complainant alleging a hostile work environment will not be time barred if
all acts constituting the claim are part of the same unlawful practice
and at least one act falls within the filing period. See National
Railroad Passenger Corp. v. Morgan, 122 S.Ct. 2061 (June 10, 2002).
The record reveals that complainant raised incidents of harassment
(allegations 4 and 5) that occurred less than 45 days from his initial
contact with an EEO counselor on November 24, 2004. Further, we find
that all of the alleged incidents are inextricably intertwined as one
allegation of ongoing harassment. As such, his claim of hostile work
environment harassment was timely raised and the AJ improperly dismissed
on this ground.
Next, we find that the agency has articulated legitimate,
nondiscriminatory reasons for its actions. As to claim (1), S1 claims
that he ordered the investigation to get to the root of the specific
environmental and climate disruptions occurring in complainant's division.
Report of Investigation, (ROI), FFC, S1's Testimony at 163-164. As to
claim (2), S1 states that he placed complainant on administrative leave
to move complainant away from the environment while the investigation
was ongoing. Id. at 167-168. Further, S1 asserts that complainant
was removed from the Priority Placement Program because agency
regulations required his removal from the program once he was placed
on administrative leave. Id. at 171. Additionally, S1 maintains that
he issued complainant a no-contact order because he felt it was the
best thing to do for the situation as it would allow the agency to
get to the root of the issues alleged. Id. at 162. As to claim (3),
S1 asserts that the investigation revealed that complainant failed to
follow financial regulations regarding the use of a government credit
card, failed to follow instructions on four different occasions, and
displayed conduct unbecoming of a federal employee. Id. at 185-199. As
to claim (4), DO states that he reviewed the investigation, consulted
with the appropriate regulations, and found that all of the charges were
substantiated, but he did not agree with termination. ROI, FFC, DO's
Testimony at 254-267. DO adds that complainant was guilty of the charges,
but DO's leniency benefited complainant since he received virtually
no punishment. Id. at 274. Finally, DO maintains that he believed
complainant should have been allowed to move on and get a fresh start.
Id. at 275. As to claim (5), complainant's second-level supervisor
(S2) confirms that complainant received a lower rating on his evaluation
based on the results of S1's investigation. ROI, S2's Declaration at 2.
S2 asserts that the investigation revealed some significant issues
with the way complainant had handled himself professionally in his
supervisory role. Id. Finally, S2 maintains that the results of the
investigation caused him concern as there were charges of favoritism to
particular vendors among other allegations. Id.
Because the agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory events, petitioner now bears the burden
of establishing that the agency's stated reasons are merely a pretext
for discrimination. Shapiro v. Social Security Administration, EEOC
Request No. 05960403 (December 6, 1996). Petitioner can do this by
showing that the agency was motivated by a discriminatory reason. Id.
(citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)). Viewing
the record in the light most favorable to complainant, we find that
complainant has failed to show that he was subjected to a hostile work
environment on the bases of race, national origin, or age. Aside from
complainant's bare assertions, the record is devoid of any persuasive
evidence that discrimination was a factor in any of the alleged incidents.
Even accepting as true complainant's allegation that the environment
was hostile, the record does not support a finding of discriminatory
hostility. At all times, the ultimate burden of persuasion remains with
complainant to demonstrate by a preponderance of the evidence that the
agency's reasons were not the real reasons, and that the agency acted
on the basis of discriminatory animus. Complainant failed to carry this
burden. Accordingly, complainant has not shown that he was subjected to a
hostile work environment on the bases of race, national origin, and age.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final order,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred.
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
December 3, 2009_______
Date
3
0120071895
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120071895