0120083851
04-29-2010
David W. Standley, Complainant, v. Lt. Gen. Keith B. Alexander, Director, National Security Agency, Agency.
David W. Standley,
Complainant,
v.
Lt. Gen. Keith B. Alexander,
Director,
National Security Agency,
Agency.
Appeal No. 0120083851
Hearing Nos. 531-2007-00031X, 531-2007-0032X
Agency Nos. 04-016, 05-024
DECISION
On September 10, 2008, complainant filed an appeal from the agency's
August 11, 2008 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.
BACKGROUND
During the relevant time, complainant worked as a Project
Director/Software Project Manager, GG-12, in S21233, the Language and
All Source Knowledge Bases Branch which was in S2123, the Analytic
Knowledge Services Division. On August 17, 2004, complainant filed an
EEO complaint alleging that he was discriminated against on the bases of
race (African-American) and in reprisal for prior protected EEO activity
when:
1. Complainant was not promoted during the June 2004 promotion cycle.
On January 8, 2004, complainant transferred to an overseas assignment
as an Information Security Systems Program Manager (ISSPM) at Menwith
Hill Station in England. Complainant worked as an ISSPM from January
2004 to January 2005. On April 15, 2005, complainant filed an EEO
complaint alleging that he was discriminated against on the bases of
race (African-American) and in reprisal for prior protected EEO activity
when:
2. Complainant was allegedly harassed by management and his co-workers.
At the conclusion of the investigation, complainant was provided 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
and complainant filed an objection to the issuance of a decision with
a hearing. Over complainant's objection, the AJ issued a decision
without a hearing on June 2, 2008. The agency subsequently issued a
final order fully implementing the AJ's finding that complainant failed
to prove that he was subjected to discrimination as alleged.
In his decision, with regard to issue (1), the AJ noted that in order to
be considered for promotion an employee had to submit a Performance Review
Package (PRP) which went through a chain of command review. The AJ noted
that the heads of organizations receive promotion allocations, which limit
the number of promotions within an organization. Complainant submitted a
PRP for the 2004 promotion cycle. The AJ noted that due to the fact that
complainant had just been reassigned, the losing organization (S2123)
retained responsibility for the promotion cycle at issue. The AJ noted
that the Branch Chief in S21233 thought complainant performed his job
well and nominated complainant and three others for promotion in 2004.
The Branch Chief recommended the following candidates in priority order
for promotion: (1) Employee A (African-American), (2) Employee B (White),
(3) complainant and (4) Employee C (White). The AJ recognized that none
of the employees recommended by the Branch Chief were promoted to GG-13.
The AJ noted that the Division Chief for S2123 reviewed all the PRPs
and scored the applicants for promotion. Complainant was ranked near
the bottom of the eligible employees for promotion to GG-13. The AJ
noted that the Division Chief nominated four candidates for Grade 13 in
the following order: (1) Employee D (African-American), (2) Employee E
(White), (3) Employee A (African American) and (4) Employee B (White).
Employee A and Employee B were the Branch Chief's top two candidates.
The AJ noted that the Chief, S212, was the selection official for the
GG-13 promotions. The Chief selected the following individuals for
promotion to GG-13 in June 2004: Employee F (White S21212), Employee E
(White S21231) and Employee D (African-American S21234).
The AJ noted that complainant claimed that the Division Chief
discriminated against him when he was not referred by the Division
Chief for promotion. The AJ found that the agency articulated that
complainant was not nominated for promotion by the Division Chief since
he was rated lower than other applicants in Factor II (Interpersonal
Skills and Teaming). The AJ noted that the Division Chief also rated
complainant lower than other applicants in Communication Skills. The AJ
stated that the Division Chief appeared to be a tougher rater than the
Branch Chief since the Division Chief's ratings were much lower than
the Branch Chief's ratings for complainant, Employee A, Employee B, and
Employee C. The AJ noted that both the Branch Chief, whom complainant did
not allege discriminated against him, and the Division Chief stated that
complainant had grammatical errors on his Internal Staffing Resume (ISR)
and in electronic mail messages, which they tried to get complainant to
change, but he did not make the changes. Moreover, the AJ noted that the
agency stated that as complainant prepared for his Permanent Change of
Station (PCS) assignment, he was not spending as much time on the work
of his current position. The AJ noted that the Division Chief opined
that complainant needed more guidance and direction and was not willing
to take initiative. The AJ found that the other applicants were more
competitive than complainant.
With regard to issue (2), the AJ noted that in Complainant's Prehearing
Statement (CPHS) complainant stated that the incidents of harassment
included being given an unfair P3 rating; having his access to a key
revoked; and being subjected to derogatory comments by management.
The AJ noted that in his formal complaint, complainant identified the
incidents of harassment to include: harassment to complete a Standard
Operation Procedure (SOP); theft accusation; placement on a Performance
Improvement Plan (PIP); unfair evaluation; contractors making derogatory
remarks about complainant; and having to return keys to an organization
door.
The AJ noted that complainant was assigned as an ISSPM at Menwith Hill
Station during the relevant time of issue (2). The AJ noted that one
of complainant's assignments was to complete a SOP. For the first
three months he was at Menwith Hill Station, complainant had his
predecessor, Employee X, on-site to assist him with his new duties
and responsibilities. The AJ noted that complainant missed one of the
deadlines for completing the SOP. The AJ stated a final deadline was set
for June 4, 2004. The AJ noted that in June 2004, complainant's immediate
supervisor, S1, demanded to see the SOP and received a rudimentary
product. S1 verbally counseled complainant about the SOP work product.
The AJ noted that S1 left Menwith Hill Station in June 2004, where he
was succeeded by S2. Prior to leaving, S1, gave complainant an Interim
Performance Evaluation Report covering the period of January 1, 2004,
to July 16, 2004 and rated complainant a 2.3 our of 5.0, for an overall
rating of "occasionally met objectives."
The AJ noted that as a result of complainant's performance and attendance
problems, S2 consulted with an employee n Labor Relations. The Labor
Relations Employee advised S2 to place complainant on an informal PIP,
which S2 did on September 15, 2004. The AJ noted that after being placed
on a PIP his work was reduced so that he was doing ISSO (Information
System Security Officer) level work, which is work that is two levels
below an ISSPM. The AJ noted that in addition to being placed on a PIP
in September 2004, complainant was also placed on leave restriction as
a result of his tardiness.
With regard to the theft allegation, the AJ noted that there is no dispute
that complainant removed a paper weight from an office in June/July 2004.
The AJ noted that prior to removing the paper weight, complainant had
attempted to remove a hygrometer from the same office a couple of weeks
earlier. The AJ noted that when complainant learned that the office where
the hygrometer was located belonged to the spouse of another employee,
he replaced the hygrometer. The AJ noted that the paper weight was
retrieved from complainant; the complainant apologized (he allegedly
believed the office where the paper weight was located was unoccupied);
and no further action was taken against complainant. The AJ noted that
the matter was investigated by a CI Investigator.
With regard to the performance evaluation from S2 for the rating period
July 21, 2004, to December 30, 2004, the AJ noted that under performance
objective 2, part of which dealt with the SOP, concerning complainant's
performance as a trainer stated "Initial feedback from the students
indicates that your presentation was 'wooden' but topic coverage was
adequate." The AJ noted that S2 did not criticize the content of the
training sessions but complainant's delivery. The AJ noted that similar
comments were made by S1 in complainant's interim evaluation.
With regard to the claim that the contractors made derogatory comments
about complainant, the AJ noted that in his affidavit complainant stated,
"It is hard to say what the comments they made were, or how many times
the occurred." The AJ noted that the record revealed that complainant
and Co-worker X, who had an equivalent rank with complainant, did not
have an amicable work relationship. The AJ cited one heated exchange
between complainant and Co-worker X in which Co-worker X told complainant
he was "the most worthless person here." The AJ noted that Co-worker
X later apologized and sent a copy of his electronic mail apology to
management.
The AJ noted that it was undisputed that in January 2005, complainant was
detailed to Project Phoenix. The AJ noted that during a meeting with
S2 and S3, complainant's second-level supervisor, S2 asked complainant
for his ISSPM badge and his key to the back door of the office.
With regard to complainant's overall harassment claim, the AJ found
that the incidents complained of were either isolated or were based upon
complainant's job performance. Moreover, the AJ found that complainant
did not present any evidence that the comments made to him by the
contractors were based on his protected status.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (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").
Sanction
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. Department of Defense, 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).
In the present case, we note the record was adequately developed and
we find summary judgment was appropriate as there are genuine issues
of material facts in dispute. With regard to issue (1), we find
that the agency articulated a legitimate, non-discriminatory reason
for complainant's non-promotion, namely his poor interpersonal and
communication skills. Additionally, we note complainant has failed to
show that his qualifications were plainly superior to the four people
who were promoted. Complainant has failed to show that the agency's
actions were a pretext for discrimination.
With regard to issue (2), the agency has shown that the agency's actions
surrounding the SOP, the placement on a PIP and the evaluation resulted
from complainant's job performance. Moreover, the record reveals that
the incident of the theft accusation resulted from complainant taking
a paper weight that did not belong to him out of a co-worker's office.
The record shows that the agency requested complainant return the key
to an organization door after he was reassigned to the Phoenix project
and no longer required the access he had while working as an ISSPM.
Furthermore, complainant failed to show that the comments made by
Co-worker X, the contractors or any management officials were based on
discriminatory animus.
Accordingly, the agency's final order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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
April 29, 2010
__________________
Date
2
0120083851
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120083851