0120150358
05-11-2017
Jeremy S.,1 Complainant, v. Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jeremy S.,1
Complainant,
v.
Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120150358
Hearing No. 510-2010-00264X
Agency No. 2009-22938-FAA-03
DECISION
On November 5, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's October 10, 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. For the following reasons, the Commission AFFIRMS the Agency's final order which fully implemented the Equal Employment Opportunity Commission's Administrative Judge's (AJ) decision without a hearing that found Complainant did not demonstrate that he was subjected to discrimination or harassment as alleged.
ISSUE PRESENTED
The issue presented in this case is whether Complainant was subjected to discrimination and/or harassment when he was suspended for 14-days, reassigned to a new position, and told that he was on a short leash.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory Air Transportation System Specialist at the Agency's facility in Carolina, Puerto Rico. Complainant was assigned to work as the Puerto Rico Systems Support Center Manager. Complainant alleged that after he was hired he was subjected to a series of incidents with his supervisor where anytime he made a management suggestion his idea was "shot down." The record also indicated that once, during a heated meeting with staff, Complainant threw a clip board at the wall. When Complainant was questioned about this incident, management found him to be less than candid about the situation.
Subsequently, Complainant was told that he was going to be reassigned, but was instructed not to release this information to his employees. Complainant however, called each one and explained that he was going to be reassigned. As a result, management decided to suspend him for 14-days because he lacked candor about the incident, failed to follow instructions and for conduct unbecoming a manager. Complainant argued that he was reassigned because he had filed an EEO complaint. Complainant also maintained that when management met with his staff to explain the reassignment, they told his staff that Complainant was on a "short leash," which led many of his employees to believe that he was not liked by management. Complainant maintained that the terminology short leash is used for dogs and slaves.
Therefore, on December 16, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to harassment on the bases of national origin (West Indies) and reprisal for prior protected EEO activity when:
1. The District Manager (DM) suspended him for fourteen calendar days, beginning September 13, 2009, and ending September 26, 2009, for Lack of Candor, Failure to Follow Instructions, and Conduct Unbecoming of a Manager;
2. The DM reassigned him on October 4, 2009, from his position as Puerto Rico Systems Support Center Manager to San Juan Systems Support Center Manager; and
3. The DM on or about October 7, 2009, allegedly told the Complainant's employees, during a meeting to discuss their concerns about his plans to reassign the Complainant to the San Juan Systems Support Center as the manager, that he had the Complainant on a "short leash," which resulted in several of the Complainant's employees sharing their sentiment with the Complainant that the DM did not like him, had him on the hot seat, and that the employees could make him (Complainant) or break him.
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 Administrative Judge. Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's November 18, 2010, motion for a decision without a hearing and issued a decision without a hearing on September 30, 2014. The AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, Complainant was suspended for failure to follow instructions. The Agency noted numerous incidents where Complainant did not do what he was told to do. He leaked confidential information including information regarding his reassignment to another position. The Agency also stated that he lacked candor, and engaged in conduct unbecoming of a manager when after a meeting, he threw a clip board at the wall. Based on these incidents, Complainant's DM suspended Complainant for 14-days. Complainant argued that two other managers also had infractions but were not reassigned. The record, the AJ found, indicated that the two employees had one infraction each while Complainant had nine (9) to eleven (11) infractions. The AJ found that Complainant did not show pretext as the comparators were not similar situated to him and the Agency explained that Complainant's infractions were more serious and more frequent.
Further, the AJ noted the Agency's explanation that Complainant was reassigned to a new position because management believed irreparable damage had been done by the Complainant with his staff and that his employees feared retaliation. Moreover, management felt that Complainant's skill set would better fit the San Juan Systems Support Center Manager assignment because Complainant's background and experience as an engineer gave him the expertise to manage this unit. Management indicated that there was no loss of grade, salary, or management duties. Moreover, the record indicated that Complainant was told he would be reassigned on May 7, 2009, but he did not engage in EEO activity until May 11, 2009. Therefore, the AJ found that the reassignment could not have been the result of reprisal.
Finally, the Agency maintained that the comment regarding Complainant being on a "short leash" was made to reassure employees that management was keeping an eye on Complainant. Management indicated that a letter had been received by 19 employees who were concerned that Complainant might become their supervisor so they wanted to assure everyone that things would be fine. The AJ found that the statement and the rest of Complainant's claims were not severe or pervasive enough to establish a hostile work environment. The AJ found that Complainant did not show that he was subjected to discrimination or that he was subjected to a hostile work environment.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that the AJ's decision assumes certain facts alleged by the Agency as factually accurate without any scrutiny. Complainant contends that the AJ erred when she considered his claims individually instead of as a group. Complainant also maintains that the AJ erred when she found that the "short-leash" comment was not severe or pervasive enough. Complainant contends that this entire case is based on a "he said/she said" premise and a credibility determination at a hearing is the only way of determining which version of the events is accurate.
In response, the Agency maintains that the AJ correctly found that there were no material facts at issue. The Agency asserts that the record shows that Complainant was suspended because he failed to follow directions multiple times, he disclosed information that he was not supposed to, and he threw a clip board at a wall and then was not candid about it.
Further, the Agency agreed with the AJ that Complainant did not show that he was subjected to reprisal when he was reassigned because the decision to reassign him was made before he engaged in protected EEO activity. The Agency asserts that the AJ's decision should be affirmed.
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. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both 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). In the instant complaint, we find that all requirements for a decision without a hearing were met and we find that no material facts were at issue.
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For 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. 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. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary's Honor Ctr v. Hicks, 509 U.S. 502 (1993).
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that even if we assume arguendo that Complainant established a prima facie case of discrimination as to all bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions as was discussed above. We find that while it is clear that Complainant did not agree with management's decisions to suspend him or reassign him, we find that Complainant did not demonstrate that discriminatory animus was involved with the Agency's actions.
We find that Complainant's attempt to establish pretext is also not supported by the record as the comparators offered by him did not commit the same number of offenses or engaged in same type of conduct as Complainant. Finally, we find that Complainant did not demonstrate that he was subjected to discrimination or reprisal.
Regarding, Complainant's claims of harassment/hostile work environment, we find that even if we consider all of Complainant's claims in their entirety including the statement that he was on a "short leash," we find no persuasive evidence that Complainant's national origin or previous EEO activity played any role here. The incidents described by Complainant appear to be common work place interactions. The record indicates that Complainant and management clearly had different ideas about how to carry out the work and the management style that Complainant should use. The evidence, however, does not establish that discriminatory animus was involved. We also find that the incidents alleged were not severe or pervasive enough to establish a hostile work environment.
With respect to Complainant's allegations on appeal, we find that other than his conclusory statements that he was subjected to discrimination and harassment he provided no evidence to support these claims. We find that Complainant has not demonstrated that material facts are at issue or that a hearing was required.
CONCLUSION
Accordingly, we AFFIRM the Agency's final order which fully implemented the AJ's decision finding that Complainant did not demonstrate that he was subjected to discrimination, reprisal and/or a hostile work environment.
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
_5/11/17_________________
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.
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01-2015-0358
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