0120150081
03-23-2017
Bryce B.,1 Complainant, v. Sean J. Stackley, Acting Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Bryce B.,1
Complainant,
v.
Sean J. Stackley,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 0120150081
Hearing No. 531-2012-00339X
Agency No. 116609801353
DECISION
On October 3, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's February 25, 2015, 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. For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
Whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing finding that Complainant failed to establish he was subjected to discriminatory harassment on the bases of race (Caucasian), color (white), national origin (Spaniard-American), and age (53) when on January 13, 2011, he alleges he was verbally assaulted, threatened and intimidated by a co-worker, and when the Agency subsequently mishandled the investigation of the incident. Additionally, whether the decision without a hearing properly found that Complainant was not discriminated against based on reprisal when on August 15, 2011, he was moved from Military Medicine to Family Practice within the clinic.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Clinical Nurse at the Agency's Patuxent River Naval Air Station facility in Patuxent River, Maryland. On or about January 12, 2011, the Agency received new furniture. Some of the chairs that were received came without headrests, and some came with them. Complainant received a chair without a headrest, and exchanged it with one with a headrest from another desk. That chair belonged to one of Complainant's co-workers, and before leaving the office for the day, the co-worker removed the chair from the Complainant's work area and returned it to his desk.
On or around January 13, 2011, the co-worker overheard Complainant telling other staff members that his chair was stolen. The co-worker approached Complainant in his office to discuss the matter. Complainant alleges that the co-worker started an argument by yelling expletives, and that he responded by advising the co-worker that "[he] did not want to do this." The argument escalated, however there was no physical contact between the two.
Immediately following the altercation, Complainant and the co-worker went to the Command Suite to speak with the Captain regarding the matter. Complainant requested to speak with the manager alone, and his co-worker was instructed to speak with the Chief of Command while Complainant met with the Captain. The Captain later involved the Lieutenant Commander who spoke with both parties to obtain both sides of the story. Both Complainant and his co-worker were required to receive counseling and to read the Disruption in the Workspace instructions from the code of conduct. Complainant's co-worker, who had been serving as the "Senior Enlisted" personnel, was removed from this leadership position and placed in a Physical Therapy Department in another location. Complainant was moved to the Family Medicine Department approximately 7 months following the incident.
On May 12, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him as articulated in the statement of Issues Presented above. After 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 June 30, 2014, Supplemental Motion for a decision without a hearing and issued a decision without a hearing on August 29, 2014. When the Agency failed to issue a final order within forty days of receipt of the AJ's decision, the AJ's decision finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged became the Agency's final action pursuant to 29 C.F.R. � 1614.109(i).2 Specifically, the AJ held that Complainant failed to offer evidence to establish that the Agency discriminated against him as alleged, or to rebut the Agency's asserted legitimate, non-discriminatory reasons for the transfer. Additionally, Complainant was unsuccessful in establishing that the circumstances surrounding the incident between him and his co-worker rose to the level of discriminatory harassment.
STANDARD OF REVIEW
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").
ANALYSIS AND FINDINGS
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).
After a review of the record, we find that there are no genuine issues of material fact or any credibility issues which required a hearing and therefore the AJ's issuance of a decision without a hearing was appropriate. The record has been adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, he was given a comprehensive statement of undisputed facts, he was given an opportunity to respond to the motion, the supplemental motion, and the statement of undisputed facts, and he had the opportunity to engage in discovery. Under these circumstances, we find that the AJ's decision without a hearing was appropriate.
Disparate Treatment
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII and ADEA case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). 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).
Under the ADEA, it is "unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. � 623(a)(1). When a Complainant alleges that she has been disparately treated by the employing Agency because of unlawful age discrimination, "liability depends on whether the protected trait (under the ADEA, age) actually motivated the employer's decision." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000) (citing Hazen Paper Co. v. Biggins, 507 U.S. 604,610 (1993)). "That is, [Complainant's] age must have actually played a role in the employer's decision making process and had a determinative influence on the outcome." Id.
Assuming, arguendo, that Complainant established a prima facie case of discrimination based on race, color, national origin, and age, we concur with the AJ's finding that the Agency articulated a legitimate, non-discriminatory reasons for the alleged discriminatory actions. Following an investigation of the incident involving Complainant and his co-worker, the Agency required both Complainant and his co-worker to receive counseling and to read the Disruption in the Workspace instructions from the code of conduct. Complainant continued to work in his positon until August 2011, but the co-worker was transferred. In sum, our review of the record indicates that the decisions the Agency made following the incident, were based on its determination of how best to effectively manage the workplace environment and Complainant's and the co-worker's conduct. Complainant was unable to establish that the Agency's actions were motivated by discriminatory animus. The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997).
Reprisal
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), Complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
Assuming, arguendo, that Complainant established a prima facie case of discrimination based on reprisal for prior EEO activity, we concur with the AJ's finding that the Agency articulated a legitimate, non-discriminatory reasons for his reassignment to the Family Practice department. While Complainant argues that he was approached about moving to a new department in March 2011, and ultimately moved to Family Practice in August 2011 because he filed an EEO complaint surrounding the incident with his co-worker, the record reflects that Complainant was reassigned due to a shortage in nursing staff, and because the department he was in did not require two Clinical Nurses. Complainant was chosen for reassignment, because out of the two Clinical Nurses, he was unable to perform nursing duties, run the Military Medicine department as a manager, supervise and appraise all staff and make their schedule, but the Lieutenant, who was in Military Medicine but on maternity leave, could. When she returned from maternity leave, Complainant was reassigned. The record also reflects that the reassignment was discussed prior to the January incident. The record is void of any evidence that Complainant's reassignment constituted adverse treatment, or that there was a nexus between the reassignment and his filing of the EEO complaint.
Harassment
With respect to Complainant's contention that he was subject to a hostile work environment with respect to the matters set forth in his complaint, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of 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, regarding the investigation of incident, or his reassignment to Family Practice were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
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 AJ's issuance of a decision without a hearing finding that Complainant failed to establish he was subjected to discriminatory harassment on the bases of race, color, national origin, and age when on January 13, 2011 he was allegedly verbally assaulted, threatened and intimidated by a co-worker, when the Agency allegedly mishandled the investigation of the incident, and in reprisal for prior EEO activity when he was moved from Military Medicine to Family Practice was appropriate. A preponderance of the record evidence does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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. The requests 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 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
__3/23/17________________
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.
2 The record reflects that the Agency did eventually issue a final order dated February 25, 2015, adopting the AJ's decision. This final order was issued after Complainant appealed the AJ's decision which became effective October 17, 2014. The Commission notes that at the time the appeal was filed it was premature. The appeal is now ripe for a decision and the instant decision will address the appeal on the merits.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120150081
8
0120150081