0120091452
07-25-2012
Edward L. Johnson, Complainant, v. Shaun Donovan, Secretary, Department of Housing and Urban Development, Agency.
Edward L. Johnson,
Complainant,
v.
Shaun Donovan,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 0120091452
Hearing No. 570-2008-00682X
Agency No. HUD-000762007
DECISION
Complainant timely filed an appeal from the Agency's January 21, 2009, 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission VACATES the Agency's final order.
ISSUE PRESENTED
The issues presented are whether the EEOC Administrative Judge (AJ) properly issued a decision without a hearing in favor of the Agency.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as Director of the Office of Labor Relations in the Agency's Office of Departmental Operations and Coordination (ODOC) in Washington, D.C.
On March 26, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of race (African-American) and in reprisal for prior protected EEO activity when:
1. The Agency denied Complainant's request to have annual leave restored to his leave account; and
2. The Agency gave Complainant a rating of "Excellent" on his Performance Accountability and Communication System evaluation for fiscal year 2007.
In an investigative statement, Complainant stated that his supervisor (S1) was aware of a previous complaint he filed in November 2005 because S1 was the EEO officer in that prior case. Complainant also stated that in 2006, he made several attempts to meet with S1 about the restoration of annual leave he earned in 2005. Complainant stated that after S1 did not respond, he wrote her a formal memorandum on February 8, 2007, requesting to meet with her regarding the leave restoration and followed up two weeks later with a telephone call. Complainant stated that on February 26, 2007, he saw S1 outside her office and asked her why she had not responded to his requests to meet regarding the restoration of his annual leave. Complainant stated that S1 said that she had just received his telephone message the previous Friday, and was preparing a response to his February 8, 2007, memorandum.
Complainant further stated the Administrative Officer told him that S1 told her that she was going to "get him" for filing a prior EEO complaint in 2005. Complainant stated that his leave was routinely restored because of work exigencies prior to his filing an EEO complaint in 2005.
Complainant also stated that leave restoration was routinely done because employees could not use earned annual leave during the late 1990s because of work exigencies mandated by the Agency's executive management. He stated that he had to limit the amount of leave that he took, routinely worked 10 hours or more per day, often had to work on the weekends, and was never given any compensatory time because he was unable to use it. Complainant stated that he was never given a clear, definitive reason by S1 for her denial of his leave restoration request. Complainant further stated that S1 falsely claimed that she had informed all employees that they needed to provide her with justification for requesting leave restoration.
Regarding claim 2, Complainant stated that on January 28, 2008, he received an envelope containing his Performance Accountability and Communication System rating. He stated that his Deputy Director (Director) was a rating official, and S1 signed the evaluation. Complainant stated that he was rated "Excellent" in two of three critical elements, "Outstanding" in one critical element, and received an overall rating of "Excellent." Complainant further stated that he believed that this rating was inaccurate because his overall performance in fiscal year 2007 was better than his overall performance in fiscal year 2006, yet he had previously received a rating of "Outstanding" in fiscal years 2005 and 2006. Complainant stated that his performance objectives had not changed in fiscal year 2007, and he was able to meet or exceed his objectives and priorities with fewer staff resources available to him than he had the prior year. He also stated that he believed the fiscal year 2007 rating was based on retaliation because there is no other logical reason for a rating of "Excellent" for his work performance during fiscal year 2007. Complainant further stated that, during the summer of 2006, he informed the Director that he had filed an EEO complaint against his prior supervisor.
S1 (African-American) stated that, during the relevant time period, she was aware that Complainant previously engaged in EEO activity. S1 stated that Complainant's leave for 2005 was restored, but in 2006, the office staff was notified by the Office of Administration to schedule leave for use before the end of the leave year. S1 stated that Complainant's subsequent requests for leave restoration were denied because his requests did not contain an explanation of his unilateral decision to cancel his leave so that he could receive subsequent restoration or a notification memorandum from his second-level manager that cancelled his scheduled leave by declaring an exigency of public business or need.
S1 stated that she questioned Complainant about why she should approve the leave restoration, although she was not informed by him in advance that there was a legitimate business reason for him to cancel the approved leave. S1 further stated that she did not tell the Administrative Officer that she was not going to restore Complainant's annual leave or tell the Administrative Officer that she was going to "get him" for what he had done.
S1 also stated that she was the reviewing official for Complainant's fiscal year 2007 performance evaluation. She stated that she reviewed documents, had a conversation with the Director, and signed the evaluation. S1 further stated that she returned the evaluation package to the Director, who communicated the rating to Complainant. S1 also stated that she remembered that Complainant did not make his management plan goals or make adjustments to his goals during the mid-year when he was given the opportunity. She stated that Complainant did not make his goals in a couple of areas, and there were management challenges during that year. S1 stated that the Director held planning sessions with all of the officials that he rated, and she would be surprised if he did not hold planning sessions with Complainant.
The Administrative Officer (African-American) stated that S1 told her she was not going to restore Complainant's leave, and when she asked S1 why, S1 responded, "I'm not doing that." The Administrative Officer stated that S1 did not tell her that she was not going to "get him" for what he had done, but she believed that she used words to the effect that Complainant needs to use his leave because he has been causing problems. The Administrative Officer stated that she called Complainant to inform him that his leave restoration request would not be approved. She further stated that she felt that S1 was treating Complainant unjustly and did not understand her actions.
The Director stated that he was the rating official and prepared Complainant's performance appraisal, and S1 was the reviewing official. The Director stated that Complainant's fiscal year 2007 evaluation was based on how Complainant's performance measured against the performance standards. The Director stated that he was not responsible for Complainant's fiscal year 2006 rating, and the fiscal year 2006 review has no relationship to the fiscal year 2007 review. The Director stated that he sat down with Complainant to talk about the performance standards, but Complainant did not want to accept what Director said and made it clear that he felt the Director was not his supervisor. The Director further stated that he had oversight of Complainant's work for the entire year and sat down to discuss various challenges with his work over the year.
AJ's Decision
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 AJ. Complainant timely requested a hearing. On October 23, 2008, the AJ gave the parties notice of his intent to issue a decision without a hearing, to which both parties responded. On December 22, 2008, the AJ issued a decision without a hearing in favor of the Agency. In that decision, the AJ denied Complainant's request to amend his complaint to include the claims that the Agency subjected him to unlawful discrimination when it gave him a cash award that was smaller than awards given to others, and the Agency failed to give him the opportunity to compete for a senior executive service (SES) position. The AJ found that both claims were untimely raised by Complainant. With respect to the accepted claims, the AJ found that Complainant failed to provide any evidence that proves that the Agency's non-discriminatory explanations were pretext for unlawful discrimination. The Agency subsequently issued a final order fully adopting the AJ's findings.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ improperly found that he failed to prove that he was subjected to unlawful discrimination. Complainant argues that two Caucasian employees received better performance evaluation ratings than he did, and his supervisor (Director) never gave him a planning discussion or a progress review regarding the critical elements of the evaluation. Complainant maintains that he should have received an "Outstanding" rating for fiscal year 2007. The Agency requests that we affirm its final order.
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. (Nov. 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 the 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 Chap. 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
As an initial matter, we note that Complainant does not challenge the Agency's denial of his request to amend his complaint. Therefore, the Commission exercises its appellate discretion and declines to review Complainant's request to amend herein. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, Chap.9, VI, C. (Nov. 9, 1999) (MD-110).
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). We find that the AJ improperly issued a decision without a hearing because there are genuine issues of material fact and credibility at issue in this case.
Disparate Treatment
Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Foundation for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he 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. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).
Once Complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. 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. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983).
Upon review, we note that Complainant alleged that the Administrative Officer informed him that S1 stated that she was going to "get him" for filing a prior EEO complaint in 2005. S1 denied making such comments. However, the Administrative Officer stated that, although S1 did not tell her that she was going to "get" Complainant, S1 stated, "because he's been causing all these problems, he needs to use his leave." Affidavit C, p. 2. The AJ concluded that S1's alleged comment about Complainant causing problems did not create an inference that his leave restoration request was denied in reprisal for his prior EEO activity. However, we determine that the comments allegedly made by S1 are highly relevant to the merits of Complainant's claims. For instance, assuming that the comments were made, the Administrative Officer attested that S1 linked her denial of Complainant's leave restoration request to him "causing all these problems." While it is unclear what S1 meant by "problems," a reasonable fact-finder could find that this was a reference to Complainant's prior EEO activity. As such, S1's comments may be probative evidence of retaliatory motive and cast considerable doubt on S1's asserted reasons for her actions. Consequently, a genuine issue of material fact exists over whether S1 made retaliatory comments about Complainant and what such comments meant.
Moreover, in her affidavit statement, S1 stated that Complainant's leave was restored for 2005. However, in a declaration dated December 5, 2008, S1 recanted her initial assertion and stated that she "did not take action in calendar year 2005 regarding an annual leave restoration request" from Complainant. S1's Declaration, p. 2. As such, we find that the credibility of S1 and other witnesses must be assessed at a hearing. Further, because S1 was the reviewing and consulting official for Complainant's fiscal year 2007 evaluation, claim 2 should also be remanded for a hearing. A decision on the merits of Complainant's complaint is improper at this juncture because summary judgment must not be used as a trial by affidavit. Redmond v. Warrener, 516 F.2d 766, 768 (1st Cir. 1975). The credibility of Complainant, S1, and the Administrative Officer must be assessed through live testimony at a hearing. Thus, we find that the AJ erred in issuing a decision without a hearing because there are material facts in dispute, and the credibility of witnesses is at issue.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the Agency's final order and REMAND this matter for further processing in accordance with this decision and the Order below.
ORDER
The Agency shall submit to the Hearings Unit of the EEOC Washington Field Office a request for a hearing within 15 calendar days of the date this decision becomes final. The agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit within 15 calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall issue a decision on Complainant's reasonable accommodation claim in accordance with 29 C.F.R. � 1614.109 and the agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. � 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 25, 2012
Date
2
0120091452
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120091452