0120113942
02-11-2013
Benjamen Miller, Complainant, v. Arne Duncan, Secretary, Department of Education, Agency.
Benjamen Miller,
Complainant,
v.
Arne Duncan,
Secretary,
Department of Education,
Agency.
Appeal No. 0120113942
Hearing No. 570-2009-00192X
Agency No. ED-2009-17-00
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's July 25, 2011 final order concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Management Analyst, GS-0343-15, at the Agency's Office of Civil Rights in Washington, D.C.
On March 19, 2009, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him in reprisal for prior EEO activity when:
1. on November 22, 2008, he was denied a special act award for writing a speech for the Office of Civil Rights' Assistant Secretary;
2. on November 28, 2008, he received an inaccurately measured ESPAS rating for the period of October 1, 2007 to September 30, 2008, which also improperly denied him awards; and
3. from September 2008 to December 2008, he was denied the use of the Agency's email system, including access to personal email files, as afforded other employees, which hampered the filing of the instant complaint and other complaints, and inflicted humiliation by conveying to other employees that warranted punitive action was taken by the Agency.
On September 4, 2008, Complainant and the Agency entered into a settlement agreement to resolve several EEO complaints. According to the terms of the settlement agreement, Complainant agreed to retire from Agency employment effective December 31, 2008; to be placed on paid administrative leave from September 2008 until December 31, 2008; to not enter the Agency's premises after the effective date of the settlement agreement; and to not bring any further action against the Agency relating to any incident or circumstance of his employment arising on or before the effective date of the settlement agreement.
At the conclusion of the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). On June 30, 2011, the AJ issued a decision by summary judgment in favor of the Agency. The Agency fully implemented the AJ's decision in its final order.
In her decision, the AJ found no discrimination. Specifically, the AJ found that assuming arguendo Complainant established a prima facie case of reprisal discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext.
The AJ noted that in regard to claim 1, Complainant's first line supervisor stated that while he was aware of the speech assignment for the Office of Civil Rights' Assistant Secretary, he was not involved in supervising Complainant's work. The first line supervisor stated that he asked the Assistant Secretary about Complainant's speech and "she responded the speech was okay." The first line supervisor stated that "the supervisor or the person for whom the work is performed could recommend the person who performed the work for a special act award. In this instance, the Officer of Civil Rights' Assistant Secretary chose not to recommend the Complainant for special act award."
Further, the first line supervisor stated that other employees write speeches for the Assistant Secretary because "she gives speeches on a regular basis. I don't have information on the number of speeches that were written or the names of the individuals who wrote speeches. I do not think that any employee was given a special act award for writing a speech."
Regarding claim 2, the AJ noted that the first line supervisor stated that he gave Complainant a successful rating for the rating period of October 1, 2007 to September 30, 2008. The first line supervisor stated that during the relevant period, he gave Complainant an opportunity to participate in development of his performance standards; however, Complainant chose not to participate in developing those standards. The first line supervisor further stated that Complainant's EDPAS rating was measured accurately, and that the first line supervisor followed Agency instructions and protocol.
Further, the AJ noted that the record contains copies of e-mail correspondence between the first line supervisor and Complainant concerning his EDPAS standards. The first line supervisor also stated that he rated Complainant's performance on a long term assignment to develop a space and facilities plan for the office as well as a succession plan. The first line supervisor stated that the document Complainant developed "was not a succession plan but was acceptable. It was not over and above what is expected of someone in his level."
Regarding claim 3, the first level supervisor stated that because Complainant was placed on Administrative Leave until the effective date of his retirement, he was not performing any official Agency duties. The first level supervisor further stated that Complainant had no reason to use or have access to the Agency's e-mail system. The first level supervisor stated, however, that Complainant was nevertheless provided a flash drive containing copies of his files including personal files. The first level supervisor stated that Complainant later returned the flash drive with a note stating he was inexperienced in using the flash drive.
Complainant, on appeal, argued that the AJ erred in issuing a summary judgment because there are material facts at issue. For instance, Complainant argued that the AJ "uncritically accepted the assertion of an innocent motivation for the actions challenged in his complaint, and completely disregarded the evidence and arguments presented by [Complainant] showing why his retaliation claims are viable." Complainant argued that the instant alleged retaliatory events occurred "very shortly" after he settled his separate EEO complaint.
Further, Complainant argued that he should have received a special act award because he agreed to engage "in a substantial project, which included working on short deadline late into the evenings on his own time, to produce a top-notch speech that was used by the Assistant Secretary at an important event." Complainant further stated that his first line supervisor did not provide an explanation why his rating was only "successful, as opposed to higher, and the evaluation itself certainly provides no clue." Finally, Complainant argued that the Agency's refusal to allow him to have access to its email system caused him harm.
The instant appeal followed.
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, 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.
As an initial matter, we find that Complainant, on appeal, has not provided any persuasive arguments regarding the propriety of the AJ's finding of no discrimination. The Commission determines that the Agency conducted a thorough investigation.
The Commission also determines that the AJ's decision to grant summary judgment, and the findings of fact, are supported by the substantial evidence in the record. The AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. Complainant did not present evidence that any of the Agency's actions were motivated by discriminatory animus toward Complainant's prior protected activity. We discern no basis to disturb the AJ's decision without a hearing, finding no discrimination.
The Agency's final order implementing the AJ's decision finding no discrimination is AFFIRMED.
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
February 11, 2013
__________________
Date
2
0120113942
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113942
6
0120113942