0120141489
07-20-2016
Diego A.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Diego A.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120141489
Hearing No. 471-2013-00063X
Agency No. 200J-0506-2012-103778
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's February 4, 2014 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the reasons stated below, we AFFIRM the Agency's final order which fully implemented the Equal Employment Opportunity Commission Administration Judge's (AJ) finding of no discrimination.
ISSUE PRESENTED
The issue presented in this case is whether Complainant established that he was subjected to discrimination on the bases of his sex, disability and age when, effective June 26, 2012, he was terminated during his probationary period.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Medical Support Assistant, GS-5 for the Agency's VA Healthcare System in Ann Arbor, Michigan which was attached with the Community Based Outpatient Clinic in Flint, Michigan. The record reveals that Complainant was hired on July 5, 2011, and was subjected to a one year probationary period. Complainant was observed on multiple occasions using the internet for personal purposes during work hours including browsing on Facebook. Complainant's job performance was rated Minimally Satisfactory during a review in April 2012. The record indicates that Complainant has PTSD and is rated as 10 percent disabled by the VA. On June 14, 2012, Complainant was told by his supervisor that he would not be retained beyond his probationary period due to unsatisfactory performance. On June 26, 2012, Complainant was terminated, effective immediately, for unprofessional conduct when he complained to the veterans that he was being unfairly fired and encouraged them to call the Director's office which at least one did on his behalf.
On November 13, 2012, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of sex (male), disability (Post Traumatic Stress Disorder (PTSD)), and age (45) when he was terminated from his position during his probationary period. Following an investigation by the Agency, Complainant requested a hearing before an AJ. Prior to a hearing, however, the Agency submitted a motion for summary judgment to which Complainant did not respond. The AJ granted the Agency's motion for summary judgment finding that there were no material facts at issue. The AJ found that Complainant did not establish a prima facie case of discrimination because (1) he was the only MSA working at the CBOC during his probationary period; (2) although he had PTSD, his supervisor was unaware of his condition and therefore he never told her that his performance issues were related to his PTSD;2 and (3) Complainant did not show that he was treated less favorably than similarly situated employees not in his protected classes.
Notwithstanding, the AJ found that even assuming that Complainant established a prima facie case of discrimination as to all bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, Complainant was terminated during his probationary period based on his deficient performance. It was noted that Complainant was observed on multiple occasions using the internet for personal reasons during work hours including browsing Facebook. Complainant was counseled regarding his continual use of the internet for personal reasons. He was also notified on June 14, 2012, that he would be terminated during his probationary period but was thereafter immediately terminated because of his inappropriate conduct of asking veterans to complain on his behalf. The AJ found that Complainant did not demonstrate that the Agency's reasons were pretext for discrimination, or that he was subjected to discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant, among other things, contends that his supervisor was aware of his age, and sex. He maintains that he did not disclose his PTSD because he did not want to be subjected to discrimination but that his supervisor should have been aware of his disability because he was listed as a 10% disabled veteran. Complainant also maintains that other employees did the same things that he did but they were not disciplined. He also contends that he was worked harder than his coworkers.
In response, the Agency, among other things, contends that it articulated legitimate, nondiscriminatory reasons for its actions and Complainant did not show that its reasons were pretext for discrimination.
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, at Chapter 9, � VI.B. (Aug. 5, 2015) (providing that an administrative judge's "decision to issue a decision without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will 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, she was given a comprehensive statement of undisputed facts, she was given an opportunity to respond to the motion and statement of undisputed facts, and she had the opportunity to engage in discovery. Under these circumstances, we find that the AJ's issuance of a decision without a hearing was appropriate.
Moreover, we find that even if we assume arguendo that Complainant established a prima facie case of discrimination as to all of his bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant was not retained during his probationary period due to his deficient performance. We find that Complainant did not demonstrate that the Agency's reasons were pretext for discrimination. The Commission has long held that where a complainant is a probationary employee, he or she is subject to retention, advancement, or termination at the discretion of an Agency so long as the decision is not based on a protected category. Coe v. Department of Homeland Security, EEOC Appeal No. 0120091442 (October 7, 2011); Kaftanic v. U.S. Postal Serv., EEOC Appeal No. 01882895 (Dec. 27, 1988) (citing Arnett v. Kennedy, 416 U.S. 134, 152 (1974)).
With respect to Complainant's contentions on appeal, we find that Complainant has not provided any persuasive evidence which shows that the AJ erred in finding of no discrimination. Assuming Complainant's contentions that he worked harder than other employees, or that other employees looked at the internet as much or more than he did were true, the fact remains that his co-workers were not probationary employees and therefore they were held to a different standard than Complainant. Further, while Complainant argues that his supervisor should have been aware that he had a disability, the undisputed record indicates that she only looked only at his resume and was not aware of his veteran's status. Moreover, as Complainant acknowledges that his medication masked his PTSD symptoms, the record does not indicate that his supervisor knew or should have known that his work deficiencies could have been related to PTSD. We find that Complainant did not demonstrate that the Agency's reasons were pretext for discrimination or that discriminatory animus was involved in the decision to terminate him during his probationary period.
CONCLUSION
Accordingly, the Equal Employment Opportunity Commission 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. Therefore, we AFFIRM the Agency's final order which found that Complainant did not demonstrate that he was subjected to discrimination.
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
__7/20/16________________
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 Complainant maintained that he took medication that controlled his PTSD so it was not evident.
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