0120062645
06-06-2007
Thomas C. Harris, Complainant, v. Alberto Gonzales, Attorney General, Department of Justice, (Executive Office for United States Attorneys), Agency.
Thomas C. Harris,
Complainant,
v.
Alberto Gonzales,
Attorney General,
Department of Justice,
(Executive Office for United States Attorneys),
Agency.
Appeal No. 01200626451
Agency No. A-03-62-1044
Hearing No. 310-2005-00006X
DECISION
Complainant timely initiated an appeal from the agency's final order concerning his equal employment opportunity (EEO) complaint claiming unlawful 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 appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).
On May 4, 2003, complainant was hired as an Affirmative Civil Enforcement (ACE) Paralegal Specialist, GS-11, at the agency's U.S. Attorney's Office (USAO) for the Northern District of Oklahoma in Tulsa, Oklahoma, subject to a one-year probationary period.
On September 24, 2003, complainant filed the instant formal complaint. Therein, complainant claimed that he was a victim of unlawful employment discrimination on the basis of race when:
(1) on August 8, 2003, management terminated his employment as an ACE Paralegal Specialist, GS-11.
By letter dated February 1, 2004, complainant requested that his formal complaint be amended to include the following additional claim, that he was discriminated against in reprisal for prior EEO activity when:
(2) on January 21, 2004, after complainant was called and testified as a defense witness in a case prosecuted by the USAO, he was cross-examined by a Supervisory Assistant United States Attorney who allegedly had no other involvement in the case but to cross-examine complainant and who had previously been referred to in complainant's pending EEO complaint.
The agency granted complainant's request to have his complaint amended to include claim (2).
At the conclusion of the investigation, complainant received a copy of the investigative report and requested a hearing before an EEOC Administrative Judge (AJ). The agency thereafter filed a Motion to Dismiss or in the alternative, an Agency's Memorandum of Law in Opposition to Complainant's Motion for Partial Findings and Conclusions Without a Hearing and In Support of Its Cross-Motion for Decision Without a Hearing.
In its motion, the agency requested that the AJ to issue a decision without a hearing in its favor. The agency argued that in regard to claim (1), complainant failed to establish a prima facie case of race discrimination. The agency further argued that assuming arguendo complainant established a prima facie case of race discrimination, management articulated legitimate, nondiscriminatory reasons for its actions which complainant failed to show were a pretext for discrimination.
Regarding claim (2), the agency argued that complainant failed to establish a prima facie case of reprisal discrimination because he did not show that a causal connection existed between prior protected activity and the alleged "humiliation" under cross-examination by a named Assistant U.S. Attorney. The agency further argued that the passage of five months between the prior protected activity and the adverse action does not give rise to an inference of a retaliatory motive. The agency found, however, that assuming complainant established a prima facie case of reprisal discrimination, complainant failed to show that management's articulated reasons for its actions were a pretext for discrimination.
The record reflects that the Assistant U.S. Attorney (A1) stated that in regard to claim (1), he was the deciding official to terminate complainant during his probationary period for not being "forthcoming and completely candid with me about the circumstances of [a] domestic incident." Specifically, A1 stated that on August 1, 2003, complainant came into his office and informed him that he had been arrested by the Tulsa Police Department on July 26, 2003 for assault and resisting arrest. A1 stated that according to complainant, he and his wife had an argument about his refusal to attend a party for his mother because he was concerned about taking the bar examination. A1 stated that complainant mentioned that the argument with his wife started in their car and the driveway of their home and that it escalated "when his wife got out of the car and slammed the door extremely hard. He then made a comment about his wife's deceased mother, and his wife left the premises." A1 stated that complainant told him that the police officers came to his house later that day and asked to enter the house, along with his wife, to retrieve some of her belongings. A1 stated that complainant claimed that because his wife snatched the car keys from his hands, he "had gotten angry and yelled at his wife that she 'better give [him] the keys.' The police officers, he said, grabbed him, pepper-sprayed him and placed him under arrest." A1 stated that he asked complainant if he was sure that he never said he was going to hurt his wife, complainant responded that he had not said or done anything to her. A1 stated that he then asked complainant if he had resisted arrest in any way, complainant responded "'absolutely' he did not." A1 stated that complainant apologized profusely for losing his temper, and expressed concern about the status of his employment. A1 stated that he informed complainant that he would have to consult with personnel "to determine what action, if any was required."
A1 stated that following his conversation with complainant, he informed a named First Assistant U.S. Attorney (F1) of the situation. A1 stated that F1 obtained the police reports and gave them to him for his review. A1 stated that the police reports indicated that the claims against complainant were "much more serious than he had described." A1 stated that he noted that complainant was alleged to have pushed his wife to the ground during the argument outside the car in front of the couple's house; and that he "was charged with assault and battery, in addition to resisting arrest." A1 stated that complainant had not informed him of this. A1 stated that four witnesses were present during the incident, and that all witnesses' statements were consistent in their description of the alleged facts. A1 stated that he noted in the witnesses' statements that complainant's wife stated to the police that there was a history of physical abuse in the marriage; and that complainant "had cornered his wife in a room and was advancing toward her with his fists clenched, screaming about getting his car keys back, while his wife was crying for help." A1 stated that he recalled complainant telling him that he had yelled at his wife from another room, and that he was not anywhere near her at that time. A1 stated that according to the witnesses, the police officers observed complainant advancing toward his wife and ordered him to stand down and put his hands down but complainant refused to comply "even after several warnings, and one of the officers put his hands on [complainant's] shoulder and arm." A1 stated that after complainant knocked one of officers into the wall, the officers pulled out pepper spray and complainant "essentially dared them to pepper stay him" which they did.
A1 stated that after reviewing the reports, he asked complainant to come back to his office. A1 informed complainant that he had read the reports and learned that the situation was much more serious than complainant had indicated when they spoke earlier in the morning. A1 stated that he felt that complainant had misled him and "had not told me the whole story about what happened." A1 stated that he told complainant that he was very concerned about these allegations and advised complainant not to comment on these new facts. A1 stated that despite his warnings not to discuss the facts, complainant "changed his story and conceded that he had pushed his wife outside their home and that he had 'been violent with his wife in the past, but never hit her.'"
Furthermore, A1 stated that on August 6, 2003, complainant was placed on administrative leave with full salary and benefits while he determined which action was appropriate. A1 stated that on August 7, 2003, complainant informed him that he did not want to resign during his probationary period. A1 stated that he then asked F1 to draft a letter notifying complainant that "because his conduct failed to demonstrate his fitness for continued employment as the ACE Paralegal Specialist, his probationary appointment would be terminated, effective at the close of business August 8, 2003." A1 stated "all employees at the USAO must demonstrate the highest integrity and complete honesty at all times." Moreover, A1 stated that complainant's race was not a factor in his determination to terminate him during his probationary period.
Regarding claim (2), the record reflects that on January 21, 2004, approximately five months after his employment was terminated, complainant testified as a defense witness in a criminal case being prosecuted by the U.S. Attorney's office. Complainant claimed that he was humiliated during cross examination when an identified Assistant U.S. Attorney (A2) asked him whether he had taken the bar examination; and whether he was terminated by the agency. Complainant further claimed that he was the only witness to have been cross-examined by A2 rather than the other Assistant U.S. Attorney assigned to the criminal case.
The record reflects that A2 stated that because he was the second chair and Criminal Chief, he assisted the other Assistant U.S. Attorney (A3) in the presentation of the subject criminal case. A2 further stated that during the relevant time A3 was a new Assistant U.S. Attorney with limited jury trial experience. A2 stated that because A3 expressed concern about her cross-examination skills, they decided to divide the cross-examination of the defense witnesses. A2 stated A3 "asked me to cross-examine [complainant], and I agreed." A2 acknowledged asking complainant how many time he had taken the bar examination. A2 stated "I did not ask the number of times that he had not passed the bar examinations." A2 stated that during the criminal case, the defendant's attorney "thought that it was important to the jury to show that [complainant] was going to be a lawyer as his 'primary profession.' [Complainant] provided further validity to his vouching before the jury by volunteering that he was 'taking the Bar next month' to become a lawyer." A2 stated that based on the defendant attorney's questions and complainant's responses, he felt that it was relevant to ask complainant how many times he had taken the bar in the past. A2 stated that "the jury should not be left with the inference that just because [complainant] is taking the Bar exam next month that he will become a lawyer." Furthermore, A2 stated that his and A3's decision to cross-examine complainant was not based on his prior protected activity.
On December 6, 2005, the AJ granted the agency's motion for a decision without a hearing, finding there was no genuine issue of material fact in dispute and concluded that complainant had not been discriminated against. The AJ found that in regard to claim (1), complainant established a prima facie case of race discrimination. The AJ found, however, that the agency articulated legitimate, nondiscriminatory reasons for complainant's removal which complainant failed to show were a pretext for discrimination. Regarding claim (2), the AJ dismissed this claim pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. Specifically, the AJ determined that testifying is a civic duty and that it does not matter who asks the questions. The AJ further determined that a reasonable person would not be deterred from engaging in EEO activity because of the identity of the person who cross-examines them in a criminal trial in which they appear as a defense witness.
The agency issued a final order dated February 15, 2006, wherein it implemented the AJ's decision finding no discrimination.
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, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition.
Claim (2)
The Commission finds that the AJ properly dismissed claim (2) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim finding that complainant was not aggrieved. Complainant has not alleged a personal loss or harm regarding a term, condition or privilege of his employment.. Moreover, we find that the alleged agency action was not of a type reasonably likely to deter complainant or others from engaging into protected activity.
Claim (1)
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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. See 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. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Commission finds that the agency articulated legitimate, nondiscriminatory reasons for its actions. Complainant has not proven, by a preponderance of the evidence, that the agency's articulated reasons were a pretext for discrimination.
The agency's final order implementing the AJ's finding of no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848, Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint an attorney to represent you and that the Court 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 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
June 6, 2007
__________________
Date
1 Due to a new data system, this case has been re-designated with the above referenced appeal number.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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