0120131718
01-22-2015
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120131718
Hearing No. 570-2011-00481X
Agency Nos. 200400052010103855;
2004-0659-2011101431
DECISION
On February 27, 2013, Complainant filed an appeal from the Agency's April 14, 2013, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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 discriminated against as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a probationary Program Analyst, GS-13, for the Interagency Program Office (IPO), in Arlington, Virginia. On August 18, 2010, Complainant filed an EEO complaint in Agency No. 200400052010103855 alleging that the Agency discriminated against him on the basis of disability (unidentified) and reprisal when:
1. On May 19, 2010, his request to attend training on SMART Objectives (Metric/Strategic Planning) was denied by his first line supervisor, Team Lead (S1);
2. On June 11, 2010, he received a written letter of counseling;
3. On July 2, 2010, he was terminated during his probationary period; and
4. He was subjected to harassment when:
a. On February 16, 2010, his request to attend the HIMSS Conference was denied by S1 and Chief of Staff (COS);
b. In March 2010, his request to attend the Metrics/Strategic planning training was denied by S1;
c. During March and April 2010, he was accused by S1 of not performing his duties;
d. In April 2010, he spoke to Deputy Director (DD) and COS about his request for reasonable accommodation to which Complainant alleges that management did not respond;
e. On April 13, 2010, his request to attend the North Chicago IPR Team Lead meeting was denied by S1;
f. On April 13, 2010, his request to attend the Healthcare Informatics Certificate Program was denied by S1;
g. On May 14, 2010, DD yelled at him and told him that he should make sure that he had proof of his claim that he requested reasonable accommodation;
h. On May 14, 2010, he received written letters of counseling;
i. On May 19, 2010, his request to attend Metric/Strategic Planning Objectives ("SMART") training was denied by S1;
j. On June 11, 2010, he received a written letter of counseling; and
k. On July 2, 2010, his employment with the Agency was terminated during his probationary period.
On February 3, 2011, Complainant filed a second complaint; Agency No. 200406592011101431, alleging that he was discriminated against on the basis of reprisal (for prior EEO activity) when:
5. On or about December 21, 2010, he was informed that his supervisor, DD, made negative comments about him during the security clearance investigation conducted by the Office of Personnel Management (OPM).1
The Agency consolidated the complaints and conducted an investigation on both complaints. 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. After both parties submitted motions for a decision without a hearing, the AJ assigned to the case issued a decision without a hearing on December 21, 2012.
The AJ adopted the undisputed facts from the Agency's brief in response to Complainant's motion for summary judgment as follows: Complainant did not show that he engaged in protected activity before he sought counseling in the instant complaint. None of his supervisors knew that Complainant had a disability. None of them has any record of Complainant's disability, and none of them received a request from Complainant for reasonable accommodation. Similarity, at the time Complainant filed the complaint, none of the management officials were aware that Complainant engaged in any prior protected activity.
On February 16, 2010, Complainant requested approval to attend the HIMSS Conference, which request S1 and COS denied on February 22, 2010. Only four Senior Healthcare Information Technology Subject Matter Experts were permitted to attend the HIMSS Conference. These employees required the mandatory annual certification, critical to their duties, which was awarded at the HIMSS Conference. Complainant's duties and responsibilities were unrelated to this conference. Complainant's participation was not required given that he was not a Healthcare Information Technology Subject Matter Expert and he did not require the certification awarded at this conference in order to perform his duties. Under these circumstances, management could not justify approving Complainant's travel and the expenses and/or time away from his assigned duties to attend. In March 2010, COS and S1 denied Complainant's request to attend Metric/Strategic Planning Training.
According to the Agency, Complainant never requested a reasonable accommodation from DD, COF, S1, or Labor Relations Specialist (LRS). All were unaware of Complainant having a disability or of Complainant ever requesting a reasonable accommodation from anyone at the Agency.
During March and April 2010, when Complainant failed to perform his assigned tasks and S1 performed the tasks for Complainant, S1 met with Complainant to review his work expectations and tasks. S1 advised Complainant that his assigned tasks were not being performed, and that the assignments that were submitted were late. S1 and Complainant's co-workers explained to Complainant what his duties were and what was expected of him and provided him with examples of completed work products.
During March and April 2010, Complainant continually complained to S1 that he did not want to do the work assigned to him because it was beneath him. Complainant indicated that he wanted to be reassigned to work directly for the IPO Director, attend trainings and meetings, and perform the type of work that was not being assigned to him.
On April 12, 2010, DD counseled Complainant for misusing government materials and resources to prepare, print, and distribute a report for Complainant's private company.
On April 13, 2010, Complainant arranged to attend the North Chicago Project and Progress Review meeting without first having requested approval to attend. This meeting was for the team based in Chicago, which Complainant was not a member, and it had nothing to do with his assigned duties. S1 and COS, upon learning of his attendance, disapproved Complainant's attendance at the meeting.
On April 13, 2010, Complainant's request for approval to attend the Healthcare Informatics Certificate program was denied by S1. Complainant's position did not require the certificate and management could not justify paying the $9,000 program fee, expenses, or time off for Complainant to attend a program that was not relevant to his position.
On May 14, 2010, DD, with assistance and advice from COS, S1, and Human Resources Specialist (HRS), counseled Complainant on two conduct issues and issued Complainant a letter of counseling. Specifically, Complainant failed to follow direct orders given by DD at a previous counseling that occurred on April 12, 2010. That order directed Complainant to 1) Stop asking co-workers for assistance with his duties and to consult with his supervisor or team lead; 2) refrain from attending meetings to which he was not invited and that had nothing to do with his position; 3) stop wasting time reading materials that had nothing to do with his position or duties; 4) refrain from being argumentative and adversarial with his supervisors when being given instructions, guidance, and feedback; 5) inform his supervisor when he was leaving his duty station or not reporting for his scheduled tour of duty; and 6) refrain from being openly critical of others' work.
On May 14, 2010, upon determining that Complainant was unable to successfully perform his existing duties, DD reassigned Complaint to a more technically oriented position responsible for the IPO website containing all the documentation and all the schedules and project management plans.
On May 19, 2010, Complainant, without S1's prior approval, registered for and made arrangements to leave work to attend training on SMART objective (Metric/Strategic Planning). S1, upon learning that Complainant planned to attend the training course, informed COS that Complainant was not approved to attend because he was not a member of the team tasked with setting the objectives for the joint strategic plan.
On June 11, 2010, DD issued Complainant a letter of counseling for unacceptable and inappropriate conduct issues based on: 1) Complainant, in May 2010, entering the workspace of a contract employee and looking for a written presentation without that employee's permission or regard for the employee's personal space; 2) Complainant improperly looked at documents on the desk of an absent government employee; 3) Complainant, on May 14, 2010, obtaining keys to an employee's office cubicle station without obtaining authorization to go through the employee's lock workspace; 4) Complainant, on June 2, 2010, entering a private office of a senior level employee and going through the employee's boxes and personal items without permission; and 5) Complainant, on June 4, 2010, being observed in the private office on the telephone.
On July 2, 2010, DD asked S1 and COS to hand-deliver to Complainant a letter dated July 1, 2010. The letter informed Complainant that his employment was being terminated effective immediately. The letter explained that Complainant was terminated during his probationary period for failure to improve conduct and performance issues previous discussed in oral counseling and letters of counseling.
Complainant failed to respond to discovery requests submitted by the Agency; and on October 5, 2012, he also failed to appear for a deposition.
The AJ found that Complainant failed to establish a prima facie case of disability discrimination. Specifically, the AJ noted that Complainant failed to provide any indication regarding the nature of his impairments. Additionally, the AJ found that Complainant failed to respond to the Agency's interrogatories on the matter, and failed to attend the deposition. As such, the AJ found that Complainant failed to take these opportunities to identify his impairments and provide evidence to support his assertions that he requested a reasonable accommodation, and spoke to his supervisors about his disability.
The AJ also found that Complainant stated that his EEO activity was on July 2, 2010, which occurred after the actions at issue in many of the incidents set forth in his complaints. As such, the AJ found that Complainant failed to establish a prima facie case of reprisal discrimination.
Nevertheless, the AJ found that even assuming Complainant established a prima facie case of discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions, as stated in the Agency's undisputed facts, above. The AJ found that Complainant failed to offer any evidence to demonstrate that the Agency's proffered reasons for its actions were a pretext for discrimination or reprisal. The AJ concluded that Complainant failed to establish that he was discriminated against or harassed as alleged.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination.
CONTENTIONS ON APPEAL
Preliminarily, we note that Complainant has submitted numerous documents since filing the appeal. However, the Commission's regulations provide that Complainant must file a brief or statement in support of his appeal within 30 days of filing the notice of appeal. 29 C.F.R. �1614.403(f). The record reflects that Complainant did not request an extension to file a brief in support of his appeal or provide any explanation as to why he was unable to provide all of his arguments within the requisite time. As such, the Commission exercises its discretion to consider only the statement filed by Complainant in a timely manner.
In Complainant's only timely submitted brief, received by the Commission on March 2, 2013, Complainant argues, in relevant part, that the AJ inappropriately granted the Agency's motion for summary judgment. Complainant argues that the undisputed facts of the record are actually in dispute and his response to the Agency's brief were not considered by the AJ. Complainant also argues that the Agency's attorney engaged in ethical violations during the EEO process. Complainant also argues that the AJ failed to read the documents in the file and failed to rule on his motions. Complainant asserts that he is an individual with a disability. Among other things, Complainant also requests that the Commission penalize the Agency's attorney in the EEO proceedings, and to find that the Agency discriminated against him.
In response, the Agency requests that the Commission affirm the AJ's decision.
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, 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).
After a careful review of the record, we find that no genuine issue of material fact exists. The record has been adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, he responded to the motion, he was given a comprehensive statement of undisputed facts, and he had the opportunity to engage in discovery. Complainant must show that genuine issues of material fact exist. Here, we find that Complainant merely disagrees with the statements of fact. However, he does not offer any evidence to show that there are genuine issues of material fact.2 Further, we find that Complainant has not shown that the AJ abused his discretion. Complainant asserts that the AJ did not read his response to the Agency's motion for a decision without a hearing; however, he has not shown that this is the case. Further, Complainant has not shown that the AJ's failure to rule on his motions were an abuse of discretion. Therefore, we find the AJ's issuance of a decision without a hearing was appropriate.
Regarding Complainant's request that the Commission sanction the Agency's attorney for "attempting to unethically pass nonsense off as 'undisputed facts,'" we decline to do so. Complainant has not demonstrated that the attorney's actions warrant a sanction. We note that the Agency's findings of facts in its motion for summary judgment are supported by the record. Complainant may disagree with those facts; however, that does not require the Commission to penalize the Agency's attorney.
Agency No. 200400052010103855
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.
Here, we find that assuming arguendo that Complainant established a prima facie case of disability discrimination and reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions, as stated above. With regard to claim 4(b), we note that although the AJ did not make a specific finding as to why S1 denied Complainant's access to the training, we find that in the ROI, S1 stated that she believed that there was only one Metric/Strategic training, and S1's reasons for not permitting Complainant to attend in March would have been the same as her response to claim 4(i).
Because we find the Agency articulated legitimate, nondiscriminatory reasons for its actions, we now turn to Complainant's burden to show that the Agency's proffered reasons were a pretext for discrimination or reprisal. We find that Complainant failed to do so. Complainant failed to offer any evidence to show that the Agency's proffered reasons were not worthy of credence or were motivated by discriminatory or retaliatory reasons.
With respect to Complainant's contention that he was subject to a hostile work environment we find that Complainant's claim must fail. Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993); 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. U. S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000).
Agency No. 200406592011101431
In Department of the Navy v. Egan, 484 U.S. 518 (1998), the Supreme Court found that federal courts, the EEOC and the MSPB are prohibited from reviewing matters within the security decision process, even if they are allegedly discriminatory. The Commission will not review an Agency's determination with regard to the substance of security clearance decisions. See Policy Guidance on the Use of the National Security Exception Contained in � 703 (g) of the Civil Rights Act of 1964, EEOC Notice No. N-915-041 (May 1, 1989); Egan. The Commission has previously held that once statements gathered during the investigation are included in the security clearance investigative report, the statements are "squarely within the rubric of a security clearance determination and, accordingly, beyond the Commission's jurisdiction." Schroeder v. Dep't of Defense, EEOC Request No. 05930248 (April 14, 1994). As such, we find that claim 5 fails to state a claim and should be dismissed.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order adopting the AJ's finding of no discrimination without a hearing.
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
___1/22/15_______________
Date
1 The record reveals that the Agency issued a partial dismissal in this issue. Complainant filed an appeal with the Commission on this matter. The Commission administratively closed this appeal, because the Agency withdrew its Final Decision and began investigating the matter.
2 We note that, in addressing an AJ's issuance of a decision without a hearing, a complainant's opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for a hearing. See Celotex, 477 U.S. at 324.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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