0120093483
05-11-2012
Elvis Acosta, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Elvis Acosta,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120093483
Hearing No. 510-2009-00070X
Agency No. HS-08-TSA-001983
DECISION
On August 14, 2009, Complainant filed an appeal from the Agency's May 18, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).1 For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are (1) whether the Administrative Judge (AJ) properly issued a decision without a hearing on Complainant's claim that the Agency discriminated against him by subjecting him to a hostile work environment and issuing him a letter of reprimand, and (2) whether the AJ properly found that Complainant had not proven that he had been discriminated against, as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Federal Air Marshal (FAM) at the Agency's Miami Field Office in Sunrise, Florida. He had worked for the Agency since 2002 and transferred to Miami in 2005. Report of Investigation (ROI) at 72-73.
On March 18, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Hispanic)2 and age (49) when it subjected him to a hostile work environment with respect to the following events:
1. in October2005, the Special Agent in Charge (SAC) chastised Complainant for his appearance and for informing Agency personnel that he is a Colonel in the United States Army;
2. in November 2006, the SAC told a Federal Air Marshal Human Resource employee not to discuss Complainant's personnel records with Complainant while he was on leave for active military service and later chastised Complainant for seeking assistance from a field office regarding his request for a response to his off-duty employment memorandum;
3. in October 2007, Complainant was placed on a physical strength building program; and
4. on November 28,2007, Complainant was issued a letter of reprimand for unprofessional conduct.
By letter dated May 23, 2008, the Agency accepted the allegations for investigation.3 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.
On April 2, 2009, the Agency filed a Motion for Findings and Conclusions without a Hearing. Complainant filed an Objection to the Agency's Motion on April 15, 2009. The AJ issued a decision without a hearing on May 1, 2009.
The AJ found that a decision without a hearing was appropriate because there was no genuine dispute of material facts. Viewing all the events in the light most favorable to Complainant, the AJ concluded that the facts did not support a finding that the Agency's conduct was motivated by any unlawful factor or that the circumstances of Complainant's employment were sufficiently severe or pervasive to constitute a hostile work environment.
The AJ concluded that the events at issue were not severe, threatening, or objectively offensive and had not interfered with Complainant's work performance. She noted that, although the SAC spoke to Complainant about his scruffy beard and wrinkled shirt, he did not record any formal discipline in Complainant's record. In addition, the AJ found that management's instructions that Complainant should contact the Miami Field Office rather than Headquarters to obtain information were not so hostile and abusive as to constitute harassment. Similarly, the AJ found that the Agency's decision to place Complainant in a physical strength building program did not constitute harassment. As part of the Federal Air Marshal Fitness Program, the Agency conducts quarterly fitness assessments that measure aerobic capability (1.5 mile run), upper-body muscular strength (maximum pull-ups), upper-body muscular endurance (maximum push-ups), and core-body muscular endurance (maximum sit-ups). ROI 259, 261. Complainant performed only one push-up, one sit-up, and one pull-up in each of two physical fitness assessments. ROI 313-14. Noting that Complainant's performance was the lowest in the office, the Assistant Special Agent in Charge assigned Complainant to an exercise regimen designed for Complainant. ROI 315. The AJ found that the Agency's action did not constitute discriminatory harassment.
In addition, the AJ found that none of the Agency's actions was related to Complainant's national origin or age. In that regard, she noted that Complainant had not alleged that the SAC or anyone else had made any statements or stray remarks concerning his national origin or age. She also noted Complainant had not shown that similarly-situated employees received more favorable treatment. The AJ found Complainant's allegation that an employee was promoted after receiving a reprimand to be immaterial because Complainant had not identified the employee's national origin, the employee's alleged conduct was not similar to Complainant's, and the instant case does not involve a promotion. Although Complainant alleged that two employees had low scores on the fitness assessment, the AJ noted that there was no evidence they had performed as poorly as Complainant and found that they were not similarly situated to Complainant because they were supervisors. The AJ also noted that Complainant had not alleged that Agency officials had failed to counsel any other FAM whose appearance resembled Complainant's. Further, there was no allegation that any other FAM had made telephone calls to Headquarters similar to Complainant's calls or sent e-mails similar to Complainant's e-mails without being subjected to similar Agency actions. Accordingly, the AJ concluded that Complainant had not established that he was subjected to a hostile work environment because of his national origin or age.
The AJ also concluded that the Agency had articulated a legitimate, nondiscriminatory reason for issuing the letter of reprimand and Complainant had not shown the reason to be pretextual. While on military deployment, Complainant contacted Agency Headquarters requesting FAM information that he believed he needed for his military assignment. He sent an e-mail to a Headquarters employee noting that he expected to "find a mutual work around to get the mission accomplished," asserting that his military command had worked well with agencies thus far, and stating, "No threat, just a straight shooter, brother." ROI 239. In another e-mail to the employee, Complainant referred to the employee's prior military service and teaching experience. Id. The employee, who considered the e-mails "caustic and intimidating" and felt threatened by the reference to his personal information, reported his concerns to his supervisor. Id. at 239-40.
The Agency stated that it issued the reprimand because Complainant had sent intimidating e-mails to an Agency employee and initially had refused to identify the source of his information. ROI 38-40, 123-24, 132-33. The AJ found that Complainant had not demonstrated that the Agency's explanation was a pretext for discrimination. In that regard, the AJ noted that the Agency reasonably could interpret Complainant's e-mails to be intimidating. The AJ also noted that Complainant had not identified any similarly-situated employee who was treated more favorably and had not shown that his national origin or age had played a role in the issuance of the reprimand. Accordingly, the AJ concluded that the Agency had not discriminated against Complainant.
The Agency subsequently issued a final order fully implementing the AJ's determination that Complainant failed to prove that the Agency subjected him to discrimination. Complainant then appealed the Agency's final order.
CONTENTIONS ON APPEAL
On appeal, Complainant asserts that the Agency engaged in a pattern or practice of race and age discrimination against him. He argues that e-mails between him and Agency officials support his harassment allegation and alleges that the Agency retaliated against him by terminating his employment.4 The Agency did not submit a statement or brief in opposition to Complainant's appeal.
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 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 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
Decision without a Hearing
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 United States 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 Corp. 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, n.5. In the hearing context, this means that the Administrative Judge must enable the parties to engage in the amount of discovery necessary to respond properly 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 this case, we find that the AJ's decision to issue a decision without a hearing was appropriate. The AJ viewed the evidence in the light most favorable to Complainant when considering Complainant's allegations. She noted there was no dispute that the SAC had spoken to Complainant about his appearance, that Complainant had contacted Headquarters for information and had been instructed not to do so, and that he had received a reprimand for his communications with a Headquarters employee. There were no facts in dispute and no need to resolve any issues of credibility. Therefore, we find that the AJ properly issued a decision without a hearing.
Hostile Work Environment
To establish a claim of harassment based on national origin or age, Complainant must show that: (1) he is a member of the statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. � 1604.11. Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [Complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994) (Enforcement Guidance on Harris).
In this case, as the AJ noted, there is no evidence that the events at issue occurred because Complainant is Hispanic or because of his age. Although Complainant attributes discriminatory intent to Agency officials, there is no independent evidence that this was so. Complainant's bald assertion that the SAC is a "bigot" does not establish that the Agency took the actions for discriminatory reasons.
Further, even if Complainant's speculation were true, we find that the events, taken as a whole, did not constitute harassment. As the AJ explained, the few incidents occurring over two years were not so severe or pervasive as to create a hostile work environment. The Agency's actions did not unreasonably interfere with Complainant's work environment and, when viewed from the perspective of a reasonable person, were not objectively offensive.
Disparate Treatment: Letter of Reprimand
To prevail in a disparate treatment claim, 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 Construction 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, 411 U.S. at 802 n. 13. The burden 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). 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 Center v. Hicks, 509 U.S. 502, 519 (1993).
In this case, we find that Complainant has not shown that the Agency discriminated against him when it issued the letter of reprimand. Our independent review of the record shows that, assuming Complainant established a prima facie case of discrimination, the Agency presented a legitimate, nondiscriminatory reason for its action. The agency issued the reprimand because Complainant had sent e-mails to another employee, who considered them intimidating and caustic, and initially had refused to identify the source of personal information about the employee. Complainant has not shown this reason to be a pretext for discrimination. He has offered no evidence that similarly situated individuals not of his protected groups were treated more favorably or that the Agency issued the letter of reprimand because of his age or Hispanic origin.
We find that the AJ's conclusions that the Agency did not discriminate against Complainant were properly drawn and were supported by the record.
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, which implemented the AJ's finding that Complainant was not discriminated against as alleged.
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 (Nov. 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
May 11, 2012
Date
1 Complainant states that he received the Agency's final order on July 27, 2009. Appeal at 4. The Agency does not dispute the statement.
2 Noting that the term "Hispanic" denotes a national origin, the AJ characterized the complaint as alleging discrimination based on national origin. AJ Dec. at 5, n.2; see also Iftikar-Khan v. U.S. Postal Serv., EEOC Appeal No. 07A40137 (Dec. 15, 2005), at n.5 (noting that, although Complainant alleged discrimination based on race (Hispanic), the Commission considers the term "Hispanic" to refer to a national origin rather than racial group).
3 Complainant amended his complaint to allege that the Agency had discriminated against him on the bases of race, age, and reprisal for prior EEO activity when it removed him from his position, see ROI at 69-2, but he subsequently withdrew his amendment and appealed the removal to the Merit Systems Protection Board, id. at 69-6-7. The AJ noted that, although Complainant referred to retaliation in his response to the Agency's Motion for Findings and Conclusions without a Hearing, he did not file a motion to amend with the AJ. AJ Dec. at 5, n.5.
4 Complainant's termination is not before us in this appeal. See n. 3, supra.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120093483
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120093483