0120110546
09-07-2012
Alan N. Oakes, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Alan N. Oakes,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120110546
Hearing No. 570-2009-00451X
Agency No. FSA-2008-00239
DECISION
Complainant filed an appeal from the Agency's August 4, 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. For the following reasons, the Commission AFFIRMS the Agency's Final Order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Contract Specialist at the Agency's Farm Service Agency (FSA) in Washington, DC. On February 1, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), color (black), and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. The Agency failed to respond to Complainant's training request dated February 26, 2008;
2. On January 28, 2008, the Agency revoked Complainant's purchase order signature authority;
3. The Agency removed Complainant's authority to train a Simplification Application Branch (SAB) employee;
4. The Agency failed to act on Complainant's list of office concerns and issues presented on March 15, 2007;
5. On September 20, 2007, the Agency failed to approve several of Complainant's orders and required Complainant to redo them;
6. Beginning in March 2006, Complainant's second line supervisor (S2) made negative statements concerning his job performance to the SAB employees;
7. The Agency classified Complainant's position as GS-1102-12, while similarly situated White employees' positions were classified as GS-1102-13;
8. The Agency failed to provide Complainant with career advancement opportunities.
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 requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and issued a decision without a hearing on July 2, 2010.1
In her Decision, the AJ found that the material facts were undisputed and that resolving all reasonable inferences in Complainant's favor, that Complainant failed to present a prima facie case of discrimination on any basis. Moreover, the AJ found that the Agency's stated reasons for its action were not shown by any evidence, to be a pretext for race, color or reprisal discrimination.
Specifically, the AJ found the undisputed evidence showed that Complainant had received a denial of his request for training from an electronic mail messaging address, "aglearnsystem" that informed Complainant that S1 was his supervisor and that "aglearnsystem" was not his supervisor. The AJ found that Complainant did not present any objective evidence that either S1 or S2 was aware of his February 2008 request for training and that their statements to that effect provided legitimate, non-discriminatory reasons for their failure to approve training for Complainant. (Claim (1)).
With respect to claim (2), the AJ assumed, without so finding, that Complainant had established a prima facie case of race or color discrimination when his purchase authority was revoked. The AJ observed that S1 explained that Complainant's authority was never revoked, but because Complainant had paid invoices previously without sufficient funds available, S1's review and approval was required until the overdrafts were resolved. The AJ found Complainant presented no evidence to rebut the Agency's legitimate, non-discriminatory reasons and accordingly, the AJ found that Complainant did not show that the Agency's reasons were a pretext to mask race or color discrimination.
With respect to claim (3), the AJ found Complainant did not present adequate evidence that he ever possessed, as a regular duty of his position, the task of training other employees. The AJ found that Complainant presented no evidence from which a reasonable inference could be drawn that Complainant's race or color motivated the Agency's decision to curtail Complainant's assignment to train his colleague, E1. The AJ therefore found no disputed facts requiring a hearing and found that Complainant had failed to establish a prima facie case of discrimination regarding this claim.
Regarding claim (4), the AJ found that Complainant and his co-workers had presented a collection of concerns to management and that while S1 and S2 did not respond to Complainant's concerns directly, S3, another management official, acknowledged receipt of the correspondence and S3 responded to the points raised by Complainant and his colleagues. The AJ noted that while the response did not entail taking the actions that Complainant and his co-workers requested, the AJ found no evidence that Complainant's race or color motivated the response that Complainant received, nor did his race or color motivate S1 and S2 to not respond directly. The AJ found none of the facts surrounding this claim were in dispute and that Complainant had not shown discrimination as alleged.
With respect to claim (5), the AJ found the undisputed evidence showed that the orders Complainant alleged had not been approved, were actually approved later. Additionally, in claim (6), the AJ noted that Complainant did not present specific evidence of the negative statements he alleges were made, and that the identified officials do not recall any such comments being made. Even so, the AJ noted that comments critical of an employee's work are the proper subject of a supervisor's remarks concerning performance. In the absence of any showing of discriminatory motive, the AJ found Complainant failed to establish discrimination on any basis for either claims (5) or (6), even if they both occurred as Complainant alleged.
With respect to claim (7), the AJ found that Complainant failed to consider that two employees in Complainant's position, at his own location, not in his protected race or color groups, were also paid at the GS-12 level, and that two supervisors, S2 and S4 (Complainant's former first line supervisor), are in the same occupational series (Contract Specialist, GS-1102), but paid at the GS-13 level and both are African American. Accordingly, the AJ found that Complainant failed to present sufficient facts that employees not in Complainant's protected classes, in the GS-1102 occupational series are paid better (GS-13 level pay) than Complainant is paid (GS-12) for the same work.
Regarding claim (8), the AJ found that Complainant's claim that the Agency has failed to provide him with career advancement opportunities is vague. Specifically, the AJ noted that Complainant did not articulate any dates of denied opportunities, nor does he point to any specific programs to which Complainant feels he should have been admitted. On the contrary, the AJ notes that S2 confirms that Complainant is at the full performance level for his occupational series at the Washington, DC location, with the exception of the supervisory position currently held by S1. The AJ concluded that Complainant failed to present any evidence that his race or color motivated the Agency to deny Complainant the career advancement he alleged he should have received.
Regarding Complainant's complaint insofar as it is based on reprisal, the AJ found that Complainant presented no evidence other than his bare assertions that the Agency officials identified in his complaint as taking the actions he believes were discriminatory, were aware of Complainant's prior protected activity, and failed to establish the particulars regarding his prior protected activity. Accordingly, the AJ found that Complainant failed to establish a prima facie case of discrimination based on reprisal. Assuming that Complainant had done so, the AJ found that Complainant did not produce evidence sufficient to create an issue of material fact to show that reprisal motivated any of the Agency's actions described in Complainant's complaint.
Additionally, the AJ considered Complainant's overall claim of harassment including all of Complainant's claims. The AJ found that Complainant failed to present sufficient evidence that any of the acts described in his complaint occurred because of his race or color. The AJ concluded that Complainant failed to present sufficient evidence that he was subjected to race, color or reprisal discrimination as alleged. The Agency subsequently issued a Final Order, dated August 4, 2010, adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
ANALYSIS AND FINDINGS
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 absence of direct evidence, a claim of discrimination is examined under the three-part analysis originally enunciated in McDonnell Douglas Corp. v. Green. 411 U.S. 792 (1973). For Complainant to prevail, he 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. Id. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its action. Tex. 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).
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985). A single incident or group of isolated incidents will not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17 (1993).
Complainant alleged that he was subjected to a hostile work environment. To establish a prima facie case of hostile environment harassment, Complainant must show the existence of four elements: (1) he is a member of a 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 the statutorily protected class; and (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. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. � 1604.11.
In the instant case, we find the AJ properly issued her Decision without a hearing. We find the material facts are not in dispute and that Complainant has not presented sufficient evidence that the incidents he described in his complaint were motivated by Complainant's race, color or occurred in reprisal for Complainant's prior protected activity. We find that Complainant did not show that the Agency's reasons for its actions were untrue and a pretext to mask discrimination. We find no evidence, for instance, to support Complainant's claim that S1 and/or S2 were aware of his request for training and that the message Complainant received from "aglearnsystems" was actually from either S1 or S2. We find Complainant has presented no evidence from which a trier of fact could conclude that S1 and S2 (or any other official identified in Complainant's complaint) were aware of Complainant's prior protected activity and note that S2 only became aware of Complainant's EEO activity days before he completed his investigative affidavit.
We find no basis upon which to disturb the AJ's Decision and find that a decision without a hearing was properly issued in this case.
CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency's Final Order, finding no discrimination.
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 7, 2012
__________________
Date
1 In her Decision, the AJ noted that neither party timely responded to her notice of her intention to issue her decision without a hearing.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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