0120100897
08-21-2012
Joseph D. Bradley, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Joseph D. Bradley,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120100897
Hearing No. 430-2008-00154X
Agency No. 2004-0652-2007102743
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal1 from the Agency's November 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., 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.
At the time of events giving rise to this complaint, Complainant worked as a Supervisory Police Officer at the Agency's McGuire Veterans Affairs Medical Center in Richmond, Virginia. Complainant alleged that the Agency subjected him to hostile work environment harassment on the bases of race (Caucasian), disability, age (58), and reprisal for prior protected EEO activity (EEO complaints filed in 2001 and 2006) when: (1) on May 9, 2007, the Acting Chief of Police (AC - Caucasian, no disability, 44) instructed him to redo a police report; (2) on May 14, 2007, AC sent him a threatening email; (3) on July 31, 2007, the Chief of Police (C1 - Caucasian, disability, 48) and AC subjected him to an intimidating interrogation after the Office of Resolution Management contacted him about being a witness in another employee's EEO complaint; (4) on August 3, 2007, C1 instructed him not to go near the Union Office; and (5) on September 4, 2007, the Assistant Director (AD - Caucasian, no disability, 60) issued him a 14-day suspension.
We must first determine whether it was appropriate for the EEOC Administrative Judge (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 AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
Upon review of the record, we find that Complainant failed to establish a claim of harassment. Specifically, we find that Complainant did not prove, by a preponderance of the evidence, that the actions complained of were based on his race, disability, age, or prior EEO activity.
Regarding incident 1, AC averred that he returned the police report to Complainant to correct spelling errors and to clarify an improper inference. In addition, AC averred that he has returned reports to other officers for similar reasons and that every officer has had reports corrected. Complainant did not dispute that other officers have had their reports returned for corrections, but disagreed with AC's characterization of the corrections as grammatical in nature (because they changed the whole meaning of the report) and felt that the suggested corrections were "illegal." Even assuming that the corrections were substantive and "illegal," the record evidence does not indicate that any of AC's actions were based on Complainant's race, disability, age, or prior EEO activity.
Regarding incident 2, the record reflects that AC's email was a response to an email sent by Complainant about the police report in incident 1. In an earlier email to AC, Complainant stated that he was resubmitting the police report without corrections and requested that the Agency's Law Enforcement Training Center or the U.S. Attorney General's Office determine whether the suggested corrections constituted report tampering or obstruction of justice. Complainant copied the Director, the Union President, and his private attorney on his email. In the response to Complainant, AC stated that the corrections were for proper grammar and clarification, denied Complainant's request, and noted that C1 demanded a high level of professionalism. AC copied the Director, the Union President, the Associate Director, the Secretary to the Associate Director, and AD on his email. AC averred that he copied them on his email because this situation with the reports had been ongoing for awhile and he was keeping them informed. Although Complainant felt that it was unnecessary for AC to copy all those individuals on the email because it was an in-house discussion and that AC "was just out to discredit [him]," the record evidence does not indicate that AC was motivated by Complainant's race, disability, age, or prior EEO activity in sending out the email.
Regarding incident 3, C1 and AC averred that this was a fact finding inquiry; they interviewed Complainant because he had filed a criminal complaint against the Acting Assistant Chief of Police (AAC) and they had no knowledge of what happened. In addition, C1 and AC averred that they were unaware that Complainant was to be a witness in another employee's EEO complaint when they questioned him about the criminal complaint. Complainant did not dispute that the interview concerned the criminal complaint, but stated that C1 and AC should not have questioned him about it because they knew that another employee was filing an EEO complaint on the same matter. Although Complainant felt that it was improper for C1 and AC to question him about a matter that was the subject of another employee's EEO complaint, there is no evidence in the record that C1 and AC asked him questions during the interview about his participation as a witness in the EEO complaint or that their actions were influenced by his race, disability, age, or prior EEO activity.
Regarding incident 4, the record reflects that C1 sent an August 3, 2007 email to all the police supervisors about the Union Office. Specifically, the email stated that, effective immediately, police supervisors while on duty will not enter or loiter near the Union Office without being dispatched to an emergency or official police service call. In addition, the email stated that the reason was because supervisors are non-bargaining unit employees not entitled to Union representation and any unofficial contact could be construed as a conflict of interest of management personnel. Further, the email stated that all supervisors are expected to comply with these instructions at all times and violation may result in disciplinary or other adverse actions. Although Complainant felt that the email's reference to discipline was a personal threat from C1, the record evidence does not indicate that C1 specifically targeted him because of his race, disability, age, or prior EEO activity. We note that C1 sent the email to all the police supervisors, not just Complainant.
Regarding incident 5, the record reflects that Complainant's August 3, 2007 proposed suspension letter listed a charge of failure to follow instructions. Specifically, the letter cited two incidents: (a) on July 27, 2007, Complainant failed to follow proper procedures for filing criminal charges for crimes that occur at the facility because he filed a complaint with the Richmond Magistrate's Office instead of the U.S. Attorney's Office; and (b) Complainant failed to complete the required Medical Center Supervisory Safety Training by close of business July 13, 2007. AD (the deciding official) and C1 (the proposing official) averred that they suspended Complainant because he did not follow Agency procedures requiring the coordination of criminal offenses through the U.S. Attorney's Office and did not complete the training even though he was reminded to do so several times by email. The following documentation in the record clearly indicates that officers must notify the U.S. Attorney's Office about crimes committed at the facility: (i) a December 14, 2006 memorandum from AC to Complainant; (ii) a December 14, 2006 email from AC to all supervisors and officers; (iii) a September 11, 2007 memorandum from an Assistant U.S. Attorney; and (iv) VA Handbook 0730, dated August 11, 2000. Complainant did not dispute that he notified the Richmond Magistrate's Office, but felt that the charge was unacceptable because, "I'm a police officer, that's my job when I see a crime to act on it." Moreover, Complainant did not dispute that he failed to complete the training despite the email reminders, but noted that he did not regularly check his work email and questioned why the Agency did not orally instruct him at meetings to complete the training. Although Complainant disagreed with the Agency's procedures and methods involving the underlying incidents, the record evidence does not show that the reasons for his suspension were in any way related to his race, disability, age, or prior EEO activity.
After a review of the record in its entirety, the Commission finds that the AJ's decision without a hearing was appropriate, as no genuine issue of material fact is in dispute. Furthermore, it is the decision of the Commission to AFFIRM the Agency's final order because the preponderance of the evidence of record does not establish that discrimination occurred.
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 (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
__8/21/12________________
Date
1 29 C.F.R. � 1614.403(d) provides that any statement or brief in support of the appeal must be submitted to the Commission within 30 days of filing the notice of appeal. Complainant filed his notice of appeal on December 16, 2009 and submitted a statement in support of his appeal on January 17, 2010 - 32 days after filing the notice of appeal. The Commission declines to consider Complainant's statement, as it was untimely pursuant to
29 C.F.R. � 1614.403(d). Although Complainant's attorney filed a separate notice of appeal on December 18, 2009 and a separate statement in support of the appeal on January 21, 2010, Complainant wrote "N/A" on the notice of appeal in the sections pertaining to attorney contact information and noted in his statement that "[t]he attorney handling this case has withdrawn."
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0120100897
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120100897