0120182330
09-27-2018
Zachariah W.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Zachariah W.,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120182330
Hearing No. 410-2016-00266X
Agency No. ARGORDON15JUN02529
DECISION
On June 22, 2018, 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 May 9, 2018, 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.
ISSUES PRESENTED
Whether Complainant established that he was discriminated against based on race (Black) and reprisal (prior EEO activity) when:
1. He received a monetary and time off award that was less than an award for a co-worker; and
2. He was subjected to a hostile work environment when:
a. On November 4, 2015, S2, his second level supervisor, reported that he felt threatened by Complainant;
b. On November 19, 2015, he reported to work and noticed his computer docking station, monitor and telephone were not in his work area;
c. On December 9 and 10, 2015, S2 did not participate in his annual evaluation in which he had placed a statement that he, S2, refused to remove; and
d. On December 10, 2015, he was asked to participate in a branch meeting by telephone and his co-workers attended face-to-face.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Management Analyst, GS-0343-12 at the Agency's Cyber Center of Excellence, Requirements Integration Division, Force Requirements Branch facility in Fort Gordon, Georgia.
On August 11, 2015, Complainant filed an EEO complaint setting forth the allegations listed above. Complainant was one of six (6) Management Analysts (MA), GS-0343-12, who worked in the Force Requirements Branch. S1 (Management Analyst Section Chief) served as Complainant's first line supervisor. S2 (Supervisory Management Analyst) and S3 (Force Requirements Branch Chief) served as Complainant's second and third line supervisors.
Awards
There were six MAs who were considered for awards. S1, who supervised Complainant, MA1(Black) and MA2 (White), recommended that Complainant and MA2 receive $700 in cash along with 20-hour time off awards. MA3 (White, no prior EEO activity), MA4 (White) and MA5 (Black) were supervised by another supervisor. The final review of the award recommendations was made by the Deputy Director (Black, prior EEO activity). According to the Deputy Director:
Our recommended cash and time off proposal was as follows. [MA4 and MA5] would receive no award because of the rating of their appraisal. They both received a score of 2 and according to the criteria, only a score of 1 was eligible for an award. The adjustment made for [MA2] and [Complainant] both received $500 and 20-hour time off award because of their performance throughout the year. They both had a 1 on their appraisal; however, the measured performance against the stated criteria did not fully warrant them receiving $700, so in coordination with [S3 and S2] they received a $500 cash award and no change to the time off award. My assessment of their performance was that [MA2 and Complainant] met the standard in most cases of their assigned tasks, however, little to no attempt was made to go above and beyond those tasks. I considered the products they prepared, the ability to brief their products, initiative, and the accuracy of the information provided and was sure that the work was not as good as that provided by [MA1] and [MA3]. MA1 and MA3 would also take the initiative by seeking and executing work they thought valuable to the organization.
The Deputy Director's recommendations were forwarded for final approval. MA1 and MA3 received $1,100.00 cash and 40-hour time off awards. His recommendations were found to be in compliance with the Agency's regulations and no irregularities were noted. There was no evidence in the record that Complainant's race and prior EEO activity were factors in determining the awards.
Hostile Work Environment
On November 4, 2015, Complainant and S2 engaged in a heated argument. S2 reported the incident. Complainant and S2 were ordered to have no personal contact, and Complainant was temporarily relocated. Complainant spoke to his union representative. The evidence of record shows Complainant indicated that he had no objection to the temporary relocation. During the temporary relocation, Complainant was provided with his computer and phone, which had to be moved from their previous location. This was done so that Complainant could continue working.
On December 9, 2015, Complainant failed to attend a scheduled "mid-point counseling session." On December 10, 2015, Complainant's mid-point counseling memorandum was annotated to reflect this non-participation. Also, on December 10, Complainant was asked to participate in a branch meeting via telephone because he was still located at his temporary work site and the no contact order with S2 was still in place.
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. Over Complainant's objections, the AJ assigned to the case granted the Agency's May 5, 2016, motion for a decision without a hearing and issued a decision without a hearing on May 9, 2018. 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.
CONTENTIONS ON APPEAL
Complainant, in pertinent part, maintains that there are genuine issues of material fact in dispute with each allegation that require a hearing. The Agency requests that its final order be affirmed.
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 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 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. 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 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).
Upon review of the record, we find that there are no genuine issue of material fact presented here. The record has been adequately developed, Complainant was given ample notice of the Agency's motion for a decision without a hearing, he was given a comprehensive statement of the allegedly undisputed material facts, he was given the opportunity to respond to such a statement, and he was given the chance to engage in discovery before responding, if necessary. We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in his favor, as explained below. Therefore, we find that the AJ's issuance of a decision without a hearing was appropriate.
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 hhe 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).
Assuming, arguendo, that Complainant established a prima facie case on the bases of race and reprisal discrimination, we find that the Agency articulated a legitimate, nondiscriminatory reason for its actions as set forth above. Furthermore, we find that Complainant did not prove, by a preponderance of the evidence, that the Agency's reasons for its actions were a pretext for race or reprisal discrimination. Regarding Complainant's hostile work environment claim, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). We also do not find that, even construing any inferences raised by the undisputed facts in favor of Complainant, these matters simply do not rise to the level of severe or persuasive conduct as to alter the conditions of Complainant's employment, nor do we find that these matters were based on Complainant's race or prior EEO activity.
CONCLUSION
Upon careful review of the AJ's decision and the evidence of record, as well as the parties' arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency's final action fully implementing the AJ's decision.
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
_9/27/18_________________
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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