0120110780
08-30-2012
Andrew Marshall, Jr., Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Andrew Marshall, Jr.,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120110780
Hearing No. 570-2008-00615X
Agency Nos. 2004-0372-2007103829; 2004-0372-2008101388
DECISION
On November 12, 2010, Complainant filed an appeal from the Agency's October 5, 2010, 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. The Commission deems the appeal timely and accepts it 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 the EEOC Administrative Judge (AJ) properly issued a decision without a hearing and (2) whether the AJ erred as a matter of law in finding that Complainant failed to establish that he was subjected to race, sex, and reprisal based discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as Program Analyst, GS-13, at the Agency's VA Regional Office, Veterans Service Center, in Washington D.C. On February 29, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis reprisal for prior protected EEO activity when (1) on July 6, 2007, he was notified of his non-selection for the position of Supervisory Veterans Service Representative or Veterans Service Center Manager (VSCM), GS- 966-14, under Vacancy Announcement number 07-C393. Complainant also alleged that he was subjected to harassment based on his race (African American), sex (Male) and in reprisal for engaging in statutorily protected activity when his supervisor (S1) issued Complainant a "fully successful performance" evaluation and a negative comment was placed in the narrative portion.
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. The Agency filed a Motion for Summary Judgment on or about January 16, 2009. Complainant filed an Opposition on February 2, 2009, and a Supplemental Opposition on June 15, 2009. The AJ assigned to the case issued a decision without a hearing on August 31, 2010.
The AJ found that assuming that Complainant established a prima facie case with regard to claim 1, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the Selecting Official, who is also the Director (Director) provided affidavit testimony the selectee (S1) was chosen "because he exhibited strong leadership skills in the delivery and benefits and services by working through backlogs and pending inventories during his tenure as the Acting VSCM." AJ Decision at 2. The Director also testified that S1 had held numerous positions in the Agency including "Claims Examiner, Senior Claims Examiner, Rating Specialist, Business Applications Analyst, and Program Analyst." Id. The Director also explained that S1 had a Master's Certificate in Project Management as well as a VA Level II Certificate in Project Management. He also has a Masters Degree in Business Administration and Political Economy with emphases in Business Economics and Economic Development respectively. He also holds a Doctorate in Political Science. The AJ found that the Director stated that in contrast. "Complainant has only served as a Program Analyst and does not possess comparable certifications." Id.
The AJ found that Complainant failed to demonstrate that the Agency's reasons for selecting S1 for the position were a pretext for retaliation. The AJ determined that Complainant was not better qualified, as he alleged. Further, the AJ found that Complainant's assertions that S1 was unfairly advantaged by the Agency when S1 was placed in the Acting VSCM position to not be sufficient to establish that he was subjected to retaliation. Ultimately, the AJ found Complainant failed to prove that the Agency was motivated by unlawful animus when he was not selected for the position.
With regard to claim 2, the AJ found that S1 explained in his affidavit that there were four performance appraisal elements and three of them were critical. In order for Complainant to be rated higher than fully successful, he had to be rated as "exceptional" in three of the four critical elements. However, Complainant was rated as "exceptional" in only one critical element. S1 testified that he wrote that Complainant was not proactive enough to ensure Systematic Analyst Operations reports were done timely. The AJ determined that the Agency proffered a nondiscriminatory response for its action. The AJ further found that Complainant failed to show that the Agency's reason was not worthy of credence. The AJ also determined that Complainant failed to proffer any evidence to show that the Agency was motivated by discriminatory animus.
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
On appeal, Complainant argues, in essence, that the Commission erred when the AJ assigned to the case was changed without notifying him and that the AJ's decision contained errors. Further, Complainant reiterates arguments that he made on appeal; namely that he established that the Agency was motivated by discriminatory animus because S1 lied about his prior EEO activity and that the agency unlawfully gave S1 the position of VSCM as a result of S1's prior EEO activity. Complainant also argues that he was given a lower performance rating in order to "disguise" these unlawful acts.
ANALYSIS AND FINDINGS
Preliminarily, we note that although Complainant asserts that he was harmed by the Commission's pre-hearing actions, nothing in the record demonstrates that the Commission abused its discretion by reassigning the case to different AJs. Further, with regard to the errors in the decision issued by the AJ, we find they are immaterial typos.
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.
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).
We find that after a careful review of the record, the AJ appropriately issued a decision without a hearing. We find that record reveals that ample notice of the proposal to issue a decision without a hearing was given to the parties; a comprehensive statement of the allegedly undisputed material facts existed; the parties had the opportunity to respond to such a statement, and the parties had the chance to engage in discovery before responding.
Disparate Treatment
Turning to Complainant's allegation of nonselection, we note that we note that to prevail in a disparate treatment claim such as this, 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 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 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, 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, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See Hicks, supra.
Assuming arguendo that Complainant established a prima facie case of discrimination and retaliation with regard the nonselection, we find that the Agency articulated legitimate, nondiscriminatory reasons as to why Complainant was not selected. In order to prove that he was discriminated and retaliated against, Complainant argues that he was better qualified than S1. One way Complainant can establish pretext is by showing that his qualifications are "plainly superior" to those of the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). The record reveals that Complainant failed to so do, as articulated by the AJ in his decision. Complainant failed to show that the Agency was motivated by unlawful animus. Further, we find nothing in the record demonstrates that Complainant was subjected to retaliation as alleged
Harassment/Hostile Work Environment Claim
`
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 to the employer. 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 on Harris v. Forklift Systems, Inc. at 6 (March 8, 1994).
Here, Complainant asserted that based on his statutorily protected classes, management subjected him to a hostile work environment. We find, however, that Complainant has not shown that he was subjected to a hostile work environment. The Commission finds that Complainant has not shown that he was subjected to conduct that was sufficiently severe or pervasive to establish that a hostile work environment occurred. In addition, the Commission finds that Complainant failed to show that any of these incidents were unlawfully motivated by discriminatory or retaliatory animus.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Final Order adopting the AJ's finding of no discrimination or retaliation.
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
____8/30/12______________
Date
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0120110780
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120110780