0120131912
10-28-2015
Andy B.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Andy B.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120131912
Hearing No. 510-2011-000599X
Agency No. 200I-0675-2011102143
DECISION
On April 10, 2013, Complainant filed an appeal from the Agency's February 28, 2013 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 the appeal pursuant to
29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are: (1) whether the Equal Employment Opportunity Commission Administrative Judge's (AJ)'s denial of Complainant's motion to stay or delay case was an abuse of discretion; (2) whether the AJ's issuance of a decision without a hearing was appropriate; and (3) whether Complainant established that the Agency discriminated against him on the bases of race (African-American) and reprisal for prior protected EEO activity when it denied his training request.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-11 Social Worker in the Mental Health Service at the Agency's Orlando VA Medical Center in Florida. Complainant's First Level Supervisor was the Social Work Supervisor (S1). Complainant's Second Level Supervisor was the Service Chief (S2).
On December 15, 2010, Complainant requested funds to attend a Behavioral Health and Addictive Disorders training scheduled for January 31 to February 3, 2011 in Clearwater, Florida. In support of Complainant's request, S1 submitted a December 15, 2010 justification memorandum stating, in pertinent part, "I support [Complainant]'s request; this training will allow him to further develop his clinical skills and therefore provide improved services to our Veterans. Your consideration of this request is appreciated." S1 and S2 signed Complainant's request and forwarded it to the Education Service's Tuition and Travel Program Committee for review.
On December 21, 2010, the Education Service's Interim Secretary (IS) emailed Complainant about his request and copied S1. IS addressed the email to Complainant. Among other things, IS stated: "[I]f you have any other information regarding this training, it would be advisable to email that to me immediately to help 'sell' your training to the [C]ommittee. There needs to be adequate justification." Later that day, Complainant responded to IS's email with an explanation of why the training was vital to the population he was working with.
At a December 22, 2010 meeting, the Committee discussed Complainant's request. The Committee reviewed Complainant's request form, S1's justification memorandum, and the training registration form. According to the meeting transcript, the Committee concluded that it would ask for more information and address the request at its January 26, 2011 meeting because "there's pretty generic justification and no information about the courses that this person would be taking."
On December 22, 2010, IS emailed Complainant to inform him that the Committee needed more information. IS did not copy S1 on the email. Among other things, IS stated: "We need more information . . . Can you please send me the agenda for your requested training . . . the [C]ommittee wants more information on the actual agenda and coursework." Later that day, Complainant sent IS a copy of the training agenda.
At the January 26, 2011 meeting, the Committee discussed Complainant's request. According to the meeting transcript, the Committee reviewed Complainant's December 21, 2010 email explanation of why the training was vital to the population he was working with, noted that the training was not mandatory, and decided that it should only consider approving mandatory training because of budget constraints. On January 26, 2011, the Committee Chair (CC) disapproved the request. On January 27, 2011, the Committee notified Complainant that it denied his request and cited the following reason: "[f]unds not available."
On March 23, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and reprisal for prior protected EEO activity (EEO complaint filed in June 2009) when, on January 27, 2011, it denied his training request.
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 AJ. Complainant timely requested a hearing. On January 17, 2013, during a telephonic pre-hearing conference, the AJ denied Complainant's November 15, 2012 motion to stay or delay case (to allow for the consolidation of the instant complaint with Agency No. 200I-0675-2012104300). On February 15, 2013, over Complainant's objections, the AJ granted the Agency's February 15, 2012 motion for a decision without a hearing. The Agency subsequently issued a final order adopting the AJ's finding that Complainant did not prove that the Agency discriminated against him as alleged. Complainant then filed the instant appeal. We will address Complainant's contentions on appeal below.
ANALYSIS AND FINDINGS
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), Ch. 9, � VI.B (Aug. 5, 2015) (providing that an AJ'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 EEO MD-110, Ch. 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 the Commission "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").
AJ's Denial of Complainant's Motion to Stay or Delay Case
On appeal, Complainant argues that the AJ's denial of his motion to stay or delay the case (to allow for the consolidation of the instant complaint with Agency No. 200I-0675-2012104300) was an abuse of discretion. Specifically, Complainant asserts that the Commission has a strong preference for the consolidation of complaints. In addition, Complainant asserts that the instant complaint and Agency No. 200I-0675-2012104300 both involve the same denial of training issue, the same management officials, the same time period, and the same bases of race and reprisal. Moreover, Complainant asserts that consolidation would have helped establish the Agency's history of discriminatory treatment against him.
Upon review of the record, we find that the AJ's denial of Complainant's motion was not an abuse of discretion. We note that an AJ has wide latitude in directing the terms of an EEOC administrative hearing. See 29 C.F.R. � 1614.109; EEO MD-110, Ch. 7, � III.D. We also note that, although an agency is required to consolidate two or more complaints filed by the same complainant, an AJ may exercise his or her discretion in deciding whether to do so.
See 29 C.F.R. � 1614.606; EEO MD-110, Ch. 5, � III.C. The record reflects that the instant complaint: (1) involves a January 2011 denial of a request for training; and (2) was before the AJ when Complainant filed his motion. In contrast, the record reflects that Agency No.
200I-0675-2012104300: (1) involves an October 2012 denial of a request for reimbursement for work-related training as well as six other incidents of alleged harassment and disparate treatment; and (2) was before the Agency and pending assignment to an EEO Investigator when Complainant filed his motion. Complainant's Motion, at Ex. A (November 6, 2012 Amended Acceptance Letter). Given the differences between the two complaints and where they were in the process, we find that the AJ's denial of Complainant's motion was not an abuse of discretion.
AJ's Issuance of a Decision Without a Hearing
We must 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 AJ 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, we find that there is no genuine issue of material fact presented here. The record has been adequately developed, Complainant was given ample notice of the Agency's motion for a decision without a hearing, he was given a comprehensive statement of the allegedly undisputed material facts, he was given the opportunity to respond to such a statement, and he was given the chance to engage in discovery before responding, if necessary. We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in his favor, as explained below. Therefore, we find that the AJ's issuance of a decision without a hearing was appropriate.
Disparate Treatment
To prevail in a disparate treatment claim absent direct evidence of discrimination, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). A complainant carries the initial burden of establishing 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 Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n.13. 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, the complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Assuming, arguendo, that Complainant established a prima facie case of race and reprisal discrimination, we find that the Agency articulated legitimate, nondiscriminatory reasons for denying his training request. Specifically, CC averred that the Committee denied Complainant's request at the December 22, 2010 meeting because there was inadequate information as to the educational content of the training. Agency's Motion for Summary Judgment, at Ex. B. In addition, CC averred that the Committee denied Complainant's request at the January 26, 2011 meeting because there were serious budget restrictions and the training was neither mandatory nor essential to the mission of the facility. Id.
Because the Agency articulated legitimate, nondiscriminatory reasons for its actions, the burden shifts to Complainant to prove, by a preponderance of the evidence, that the Agency's reasons were a pretext for race and reprisal discrimination. On appeal, Complainant focuses on S1's actions. Specifically, Complainant argues that Medical Center Policy No. 141-01 requires supervisors to justify requests, but that S1's December 15, 2010 justification memorandum on his behalf was generic and did not contain an adequate justification. In addition, Complainant argues that S1's February 2, 2011 justification memoranda on behalf of two Caucasian employees (C1 and C2)2: (1) was more strongly worded because it stated "fully support" rather than "support;" and (2) identified funds within the Mental Health Service that could be used for their training. Moreover, Complainant argues that IS communicated the lack of adequate justification to S1 in her December 21, 2010 email, but that S1 did not provide any additional justification.
Upon review of the record, we find that Complainant did not establish pretext. We note that, in accordance with Medical Center Policy No. 141-01, S1 submitted a justification memorandum in support of Complainant's request. Regarding S1's use of the word "support" rather than "fully support," we find no evidence in the record that Complainant's race or prior protected EEO activity played a role in S1's word choice. Regarding S1's identification of funds within the Mental Health Service, the justification memoranda for C1 and C2 included the following statement: "Funding for this can be utilized through FCP 8813 which is specifically designated for education/training for Substance Abuse personnel." By Complainant's own admission, however, he was not working in the area of substance abuse at the time of his request. Complainant's Response to Agency's Motion for Summary Judgment, at Ex. 1. Because Complainant was not even working in the area of substance abuse, the fact that S1's justification memorandum for Complainant did not similarly mention the availability of FCP 8813 funds does not show that S1 held any animus against Complainant based on his race or prior protected EEO activity. Regarding S1's failure to provide any additional justification in response to IS's December 21, 2010 email, we note that IS addressed the email to Complainant and not to S1.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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, 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 (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, Director
Office of Federal Operations
__10/28/15________________
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.
2 The Committee approved C1 and C2 to attend an April 2011 conference in Washington, D.C.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120131912
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131912