0120121464
07-02-2012
Daimian L. Jones, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.
Daimian L. Jones,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Federal Emergency Management Agency),
Agency.
Appeal No. 0120121464
Hearing No. 461-2011-00103X
Agency No. HS-09-FEMA-00540
DECISION
On February 10, 2012, Complainant filed an appeal from an Administrative Judge's (AJ) decision concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Title VII of the Civil rights Act of 1964 (Tile VII), as amended, 42 U.S.C. � 2000e et seq. When the Agency did not issue a final action following the AJ's, decision, the AJ's decision became the Agency's final order pursuant to 29 C.F.R � 1614.109(e). The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405 (a).
BACKGROUND
During the period at issue, Complainant worked as a Logistic Specialist/Inventory Specialist, C3 at the Federal Emergency Management Agency, Washington, DC. On December 2, 2009, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency discriminated against him on the basis of race (African-American) when:
on August 19, 2009, he was terminated for unprofessional behavior and making threat towards co-workers.
After the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On August 31, 2011, the Agency filed a motion for judgment without a hearing. On September 14, 2011, Complainant filed a response to the Agency's Motion for Summary Judgment. On September 19, 2011, the Agency filed a reply in further support of its motion for judgment without a hearing. After reviewing the record, the AJ determined that the complaint did not warrant a hearing and issued a decision without a hearing on November 2, 2011.
In his decision, the AJ found that the Agency hired Complainant on October 2, 2006 as a Disaster Temporary Employee, authorized by the special hiring authority pursuant to the Stafford Act. Such temporary employees perform disaster and emergency services for which the Agency does not have adequate full time staff. Complainant received a wage from the Agency when he was deployed and working at a disaster. In 2008, the Agency deployed Complainant on numerous occasions and he worked under a Field Coordinator at the Agency's facility in Lottie, Louisiana. On March 31, 2009, Complainant's FEMA- issued security badge expired at a time when Complainant was not deployed to a disaster site or otherwise performing work for FEMA. The next day, Complainant went to the Louisiana Temporary Recovery Office (LATRO) in Baton Rouge to renew his security badge. When Complainant arrived at LATRO he began the procedure for obtaining a new badge with the assistance of LATRO security officers, who finger-printed him, took his photograph, and gave him a Personnel Verification (PIV) form to complete and have signed by the Field Coordinator.
When Complainant asked the Field Coordinator to sign his PIV form, the Field Coordinator informed Complainant that he could not sign the PIV because Complainant was not actively deployed to a disaster. Complainant then told the Field Coordinator that that his Cadre Manager had given signature authority to the Field Coordinator and he could sign the PIV form if he wanted to do so. However, the Field Coordinator was reluctant to sign the PIV because the badge had already expired and because he felt that the Complainant was acting bizarrely and irrationally. After Complainant continued to protest. He alleged that the Field Coordinator stated "I am not signing [the PIV Form] for people like you" which the Field Coordinator denied.
Complainant became enraged as he felt that the Field Coordinator refused to sign the PIV form because of his race then went to the office of the Supervisory Emergency Specialist, Facility Director, to request that she sign the PIV form. After she signed the form, Complainant returned to security to complete his badge renewal. At that time the Field Coordinator approached the Supervisory Emergency Specialist to ask her not to sign complainant's PIC form. Because she had already signed the form, she asked Complainant to return the signed form and to accompany her to the Field Coordinator's office for further discussion.
When they arrived at the Field Coordinator's office, Complainant became enraged and yelled at the Field Coordinator, arguing that the Field Coordinator did not want to sign the PIV form because of Complainant's race and told him " May God have mercy on you."1 When the Supervisory Emergency Specialist offered to shred the completed PIV form on Complainant's behalf, he stated that he did not care what she did with the signed PIV from, and that she could "wipe her ass with it." FEMA Security personnel were called and they confiscated Complainant's badge and escorted him out of the building. On August 19, 2009, Complainant was terminated for "Making a threat toward a FEMA employee, and rude and unprofessional conduct."
ANALYSIS AND FINDINGS
The EEOC Regulations on summary judgment are patterned after Rule 56 of the Federal Rules of Civil Procedure, which provides that a moving party is entitled to summary judgment if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. There is no genuine issue of material fact where the relevant evidence in the record taken as a whole, indicates that a reasonable fact finder could not return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc, 477 U.S.242, 248 (1987). Summary judgment is also appropriate where the party opposing summary judgment fails to establish a genuine issue of fact on an element essential to that party's case and on upon which the party bears the burden of proof. Celotex Corp v. Catrell, 477 U.S.317, 322-323 (1986). 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, summary judgment is not appropriate. In the case of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition.
The Commission finds that that the grant of summary judgment was appropriate, as the AJ correctly found that the record is complete, and there is no genuine dispute of material fact exists.
A claim of disparate treatment is examined under the three part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); EEOC Petition No. 03900056 (May 31, 1990).
Here, Complainant admitted that when the Field Coordinator refused to sign the PIV form he became abusive by saying "God, help you" or "God have mercy on you". Complainant further exacerbated the situation after a Supervisory Emergency Specialist asked him to return the documentation she signed, Complainant told her that she could "wipe her ass with [the document]". The Agency found Complainant's behavior threatening and called the FEMA security and secured Complainant's badge and escorted out of the building. The AJ found that there is no evidence that the Agency's action was motivated by racial animus. The AJ found that the Agency's articulated legitimate non discriminatory reasons for its action and it was not a pretext to mask race discrimination when Complainant's employment was terminated on August 19, 2009.
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 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 (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
July 2, 2012
__________________
Date
1 The Agency stated that in a deposition, Complainant asserts that he actually said "God help you." The Agency stated further, however, that despite the discrepancy of the specific words in this exchange, its actions would have occurred irrespective of which precise phrase was employed in this instance.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120121464
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121464