0120101847
09-16-2010
William C. Hurt, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
William C. Hurt,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120101847
Hearing No. 471-2008-00101X
Agency No. ARTACOM07OCT04220
DECISION
On March 26, 2010, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's March 1, 2010, 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 it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS IN PART AND REMANDS IN PART the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed as a Quality Assurance Specialist with the Tank Automotive Armament Research Developing Center (TARDEC) in Warren, MI. Although he was with TARDEC, he was on loan (a matrix employee) with Assured Mobility Systems (AMS), in Warren, MI, since January 2006, doing quality assurance work related to mine protected route clearance vehicles. Investigative Report (IR), at 94.
Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of race (Black) when:
1. he was released from his matrixed position in September 2007;
2. it did not aggressively pursue a reassignment after his release;
3. he was not given advance notice, a discussion, or opportunity to improve before being released; and
4. the Agency released and moved him without the concurrence of TARDEC management.
Following an investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). After the AJ assigned to the case granted the Agency's Motion for Summary Judgment, the Agency issued a final order adopting the AJ's finding that Complainant failed to prove that he was subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant contends that his performance was excellent, so there is a genuine issue of material fact on the Agency's reason for releasing him, i.e., performance issues. He argues that the investigation was inadequate. He characterizes the Agency's search after his release for another assignment as not aggressive. He argues that he filed an amended complaint, and it was not investigated. In opposition to the appeal, the Agency argues that the AJ correctly found no discrimination without a hearing.
ANALYSIS AND FINDINGS
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 9-16 and 9-17. (November 9, 1999) (providing that an AJ's "decision to issue a decision without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will 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.
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.
Based on a review of the file, the Commission finds that the AJ properly issued a decision without a hearing. Complainant failed to proffer sufficient evidence to establish that a genuine issue of material fact exists such that a hearing on the merits is warranted. Specifically, the Commission finds that the AJ made certain that the investigative record was adequately developed; there were no genuine issues of material fact; and there were no findings of fact made by weighing conflicting evidence or assessing witness credibility.
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally 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). The prima facie inquiry may be dispensed with in this case, however, since the agency has articulated legitimate and nondiscriminatory reasons for its conduct. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
Released from Matrixed Position in September 2007
In finding that Complainant was not discriminated against when he was released, the AJ observed that his replacement was also Black, and the Agency gave a legitimate, non-discriminatory reason for its action --- the AMS Deputy Project Manager (PM), who made the decision, explained that Complainant had performance issues. The PM based this on the assessments of three or four of his Systems Acquisition Managers (SAM). The PM explained that because AMS assesses the resources it needs each year to determine whether to renew agreements, in the summer of 2007 he asked his SAMs whether they were getting what they needed. He stated that after someone has been doing AMS work for a year or two, they have a track record on whether they are meeting AMS needs, and that all the SAMs Complainant served replied that they were not getting what they needed because he had performance issues, i.e., not meeting deadlines, tardy on the job, work not professionally done, and difficult to work with. The record contains emails from two SAMs variously indicating that Complainant had issues with tardiness, quality, and not meeting deadlines. Complainant disputed this assessment. In finding that there was no genuine issue of material fact, the AJ determined that Complainant admitted being late to some meetings and not completing some projects in a timely matter. This is supported by the record. Investigative transcript (IT), at 15. While Complainant blamed some of this on the Agency, he acknowledged that it was partly caused by parking problems and family illness. IT, at 16; Appeal argument, p. 8 (due to the needs of a family member, he repeatedly took family and annual leave in January to September 2007).
AMS provides soldiers with vehicles used to clear routes of explosive hazards, and for this reason operated at an unusually accelerated pace. The PM stated that delays in processing can result in soldier deaths. He stated that even when an employee causes delays in AMS for legitimate reasons, such as a family situation, it cannot be tolerated and the person will be rotated out. IT, at 69-70, 78-79. While Complainant does not agree with the PM's assessment of his performance, there is not a genuine issue of material fact that the PM believed Complainant was not meeting the needs of the organization. As the record does not show this explanation was pretext to mask discrimination, we find Complainant has not proven discrimination on claim 1.
Agency Failed to Aggressively Pursue a Reassignment
After his release, Complainant's TARDEC team leader asked an Associate Director in TARDEC to try to find Complaint another position. The Associate Director, who described his role as broker who marries skills to organizations, but can't direct placements, looked for quality assurance work for Complainant. IT, at 94, 98. In finding no discrimination, the AJ determined that the record showed the Associate Director pursued a position and found one, that Complainant acknowledged this, and he rejected the offer to pursue other avenues. All this is supported by the record. IR, at 88, 89. The Associate Director stated that he contacted every one he was aware of that had quality assurance people. IT, at 100. Complainant was offered the position by November 13, 2007, about six weeks after he was released. Given all this, we agree with the AJ's finding that there is no genuine issue of material fact, and there was no discrimination.
Not Given Advance Notice, a Discussion, or Opportunity to Improve Before Being Released
In finding no discrimination, the AJ determined that there was no genuine issue of material fact that Complainant's team leader did not know Complainant was going to be released until the very end and counseled Complainant about the concerns raised by AMS. The team leader conceded that he was aware prior to September 26, 2007, that AMS had performance concerns with Complainant, but did not know until then that the PM would release him. The team leader stated that he tried and hoped to keep Complainant on board. IT, at 114, 115, 126. Complainant disputed that he was counseled about the concerns raised by AMS until he was released.
When asked if he discussed problems with Complainant, the PM stated that the SAMs work with the matrix people, and while they should give feedback to the TARDEC team leader, he did not know if they did so. Complainant's team leader stated that he occasionally gave Complainant feedback.
We agree with the AJ's finding that Complainant's team leader did not know Complainant would be released until the decision was made. While there is a dispute about whether Complainant was counseled in advance, we agree with the AJ's finding of no discrimination. Even if the team leader's communication skills were lacking, the record does not contain evidence tending to show discrimination. The team leader tried to keep Complainant in AMS. This vitiates against a finding of discrimination.
The Agency Released Complainant and Moved him Without the Concurrence of TARDEC Management
Complainant contended that he was reassigned in violation of TARDEC Policy Memorandum #13, dated February 28, 2007. In finding no discrimination, the AJ noted that the Memorandum applied to moves within TARDEC, and not to the actions of the PM of AMS. This is supported by the language in the Memorandum and the undisputed statement of the PM. IR, at 174, 175 and IT, at 81-82. The AJ's finding of no discrimination is affirmed.
Outstanding Claims Requiring Further Processing
Complainant filed amended complaint(s) of discrimination, which were accepted by the Agency by letter dated March 17, 2008. The accepted claims were whether Complainant was discriminated against based on his age (55) and reprisal for EEO activity when:
a. on or about January 7, 2008, he asked his [successor] acting TARDEC team leader for two days of annual leave, but the acting team leader told management that Complainant only requested one day. Upon his arrival at work, he received an email from the Acting Associate Director questioning his whereabouts; and
b. on February 1, 2008, he received his annual Contribution based Compensation and Appraisal System performance evaluation for the period of October 17, 2006 to September 30, 2007, which contained negative comments under the section of Teamwork/Cooperation, Part II, Supervisors Assessment. Complainant contends that the Associate Director did not have face-to-face discussions with him during the rating period, and should not have rated him.
The claims were accepted under agency complaint number ARTACOM07OCT04220, but there is no indication in the record that they were investigated or otherwise processed. The Agency has a duty to process these claims per 29 CFR Part 1614. Accordingly, the Agency must comply with the Order below.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM IN PART AND REMAND IN PART.
ORDER
The Agency is ordered to process claims a and b in accordance with 29 C.F.R. Part 1614.1 The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final.
A copy of the Agency's letter of acknowledgment to Complainant must be sent to the Compliance Officer as referenced below.
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. 29 C.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 (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
September 16, 2010
__________________
Date
1 If the remanded claims were split off into another case, or are otherwise being processed in accordance with 29 C.F.R. Part 1614, appropriate processing would include making a note to the file to this effect, and submitting it to the referenced Compliance Officer. If Complainant waived the processing of these claims, the Agency may issue a final agency decision to this effect, and supplement the record with supporting documentation. There is an indication in the record that Complainant also alleges race discrimination on these claims. If these claims are going to be investigated, Complainant should be asked to clarify the bases of discrimination raised.
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0120101847
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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